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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: primaries
MORE THAN a quarter of Virginia’s electorate considers itself Republican, which translates to almost 1 million voters. Of that number, about 8,000 — less than 1 percent — showed up at the party’s convention in Richmond over the weekend to choose the GOP candidates in this November’s races for governor, lieutenant governor and attorney general.
That, in addition to the party’s overall rightward tilt, helps explain how, in one of the nation’s most centrist states, Republicans came to choose a slate of hard-right conservatives.
The fallout in the consulting world from two obscure local races continues to reverberate in the Golden State political world. At issue is the involvement of Democratic consultants in two 2012 Democrat-vs.-Democrat California Assembly general-election campaigns.
Two union-backed Democratic incumbents lost re-election to Democratic challengers who were supported by business groups that sent out anti-union mail. Irate union groups and high-level California Democrats began to look into who was behind the mailers.
The Sacramento Bee reports that Steve Glazer, a 2010 campaign aide to Democratic Gov. Jerry Brown, was involved in the anti-incumbent efforts as a consultant to the state Chamber of Commerce.
In March, CQ Roll Call first reported that this digging resulted in the breakup of the Mack|Crounse Group, a nationally prominent Democratic direct mail firm.
In an email to the Bee, Glazer defended his participation in the effort, further exhibiting the new world order of California politics.
“The party and labor used to hand pick candidates,” Dan Morain of The Bee writes. “The top-two primary system alters that equation.”
Miami Herald: “U.S. Sen. Marco Rubio persuaded state lawmakers to make a last-minute change eliminating Florida’s early presidential primary – a race in which the Republican could be on the ballot.”
What Do You Get When Two Candidates from the Same Party Who are Virtually Indistinguishable Run in Round Two of a Nonpartisan Primary?
Exactly what you’d expect—trumped up and exaggerated ethics charges.
Gannett: “South Carolina Republicans who want to block Democrats from voting in GOP primaries have been unable to persuade state lawmakers to change election law, and they’re stalled in federal court.Now they’re turning to party rules, trying to line up enough delegates to make a big switch in GOP practice: Picking nominees through a vote of activists at a state convention in 2014 instead of through the current open primary in which anyone can vote.”
Guest post at The Monkey Cage from Doug Ahler, Jack Citrin, and Gabriel Lenz. Their conclusion: The open primary isn’t producing more moderate candidates because voters can’t tell if candidates are moderates or extreme:
For advocates of the reform, the results of this survey experiment are disappointing. If the open ballot did indeed help moderate candidates, they should have won more votes in the open-ballot condition than in the closed-ballot condition. But as shown in the scatterplot below, we find no such evidence: Moderate candidates for the House of Representatives fared no better under the top-two primary than they would have in closed party primaries.
Check out the comments to Richard’s piece on California’s top two primary.
“U.S. House Republicans Who Supported the ‘Cliff Deal’ Were Most Likely to Come from States with Closed Primaries”
Mark Paul: “That doesn’t count as definitive evidence, but it’s a reminder that we are still waiting for the [top two primary] reformers to show us any evidence that the changes they pimped have had any benefit at all.”
Politico: “The disastrous 2012 election and embarrassing fiscal cliff standoff has brought forth one principal conclusion from establishment Republicans: They have a primary problem. The intra-party contests, or threat thereof, have become the original sin that explains many of the party’s woes in the minds of GOP leaders. It’s the primaries that push their presidential nominees far to the right (see “self-deportation” and “47 percent”); produce lackluster Senate candidates (Todd Akin has almost become a one-word shorthand); and, as seen most vividly in the last two weeks, dissuade scores of gerrymandered House members from face-saving compromise while politically emasculating their speaker.”
Nathan Yu has this blog post at State of Elections.
Bloomberg View: “Uprooting intense partisanship in Washington would be easier if fewer legislators represented safe, ideologically homogenous districts. Or so reformers have long maintained. Now, with the final results in from legislative races in California, that thesis will get a real-world test. California conducted two important election experiments this year. It switched from a system of traditional party primaries to one in which the top two candidates move on to the general election regardless of their party affiliations. In addition, it took redistricting powers out of the state legislature and invested them in a nonpartisan citizens commission.”
See this oped from some LWV folks.
NYT on the politics of the top two primary.
PPIC has issued this report by Eric McGee and Daniel Krimm. Here is the summary:
In the June 2012 primary, California tested two important electoral changes: new legislative and congressional districts drawn by an independent citizens commission and a “top two” primary system. The results suggest the reforms produced some changes—in particular, more open seats and more competition. However, there was also a great deal of continuity with recent elections: most candidates endorsed by a major party and all incumbents are advancing to the fall election and partisan outcomes were broadly in line with what might have been expected under the old primary system. Over time, the reforms may produce more radical change, but the first step on the road of reform has been a small one.
See this order.
“The Tea Party’s Enemy No. 1; Benjamin Ginsberg, Bush’s lawyer in the 2000 recount, has orchestrated a major power grab for Romney”
The Tablet reports.
NYT’s “The Caucus” blog: ” Mitt Romney’s supporters passed new rules governing future primaries over the loud boos of Ron Paul supporters and other conservative activists who had objected to what they said was a power grab by the party’s establishment leaders.”
Don’t miss the picture accompanying the article.
ABC News: “A compromise on Republican Party rules will likely prevent a convention floor fight on Tuesday. Republican National Committeeman James Bopp, who had led a movement to oppose a new delegate rule on the convention floor, confirms to ABC News that he has agreed to a deal on compromise language.”
BLT: “Patton Boggs partner Benjamin Ginsberg is facing a growing storm of criticism from Republican delegates who say he pushed through a rules change that would help Mitt Romney if the presumptive GOP nominee ousts President Barack Obama and seeks reelection.”
Fascinating Buzzfeed report,which begins: “Frustration over changes to the Republican Party’s rules pushed through by the Romney Campaign on Friday may lead to a fight on the floor of the Republican National Convention on Monday. The Convention Committee on Rules took a number of steps on Friday to weaken the power of state conventions and state parties, while consolidating the power of presidential candidates in the nominating process. Some of the changes — to require that delegations from statewide caucuses and primaries to the convention adhere to the will of voters — weakened the hand of insurgent-type candidates but have been well received by the committee. But a change allowing presidential candidates the right to vet their own delegates to the national convention has many state party officials up in arms — and they are planning to bring it to the convention floor.”
More from the Washington Times.
(h/t Rob Richie)
David Schleicher has written this piece for The Atlantic. A taste: “Elmendorf and I have come up with a few ideas. Ballots could designate which party is in control of the state legislature, allowing voters to more easily decide based on policies and performance. States could mandate that ballots list candidates as, say, ‘Massachusetts Republicans,’ rather than just as ‘Republicans,’allowing voters to more easily disassociate the state and national parties. Voter registration rules could be relaxed to allow separate membership in parties for state and national elections. More radically, states could ban national parties from contesting local elections, allowing local parties to develop, although this would face serious constitutional challenges.”
And really, if you read the NY Times article, the MOVE Act is apparently being blamed for the date change, which is being blamed for 5% turnout on Tuesday — less than the 7% turnout for New York’s presidential primary.
Make no mistake: whatever the cause, the solution has to involve efforts to better inform voters, rather than critique of the decision to schedule elections so that servicemembers can effectively participate.
“Top Two in California Primaries, June 2012: By the Numbers: High Rates of Invalid Ballots; Perverse Outcomes; Major Parties Dominate”
FairVote has issued this press release.
Joe Mathews wants California to be more like Wisconsin in its politics. Really.
And anyone who thought top two and citizen redistricting would fundamentally transform California had expectations which were way too high.
The LA Times offers this report, with the subhead: “In most of the undecided candidate contests, it’s not yet clear who finished second — a crucial position in the state’s new ‘top-two’ elections system.”
Must-read San Diego Union-Tribune article on gaming the top-two primary: “Democratic state Sen. Juan Vargas used some of the $630,000 he spent running for Congress in the primary election on an unusual but ultimately fruitful cause — direct mailers promoting a Republican rival, his preferred opponent in November. Vargas finished with 45 percent of the vote, according to unofficial results of Tuesday’s primary. Republican Michael Crimmins had 20 percent and former Democratic legislator Denise Moreno Ducheny had 15 percent.”
UPDATE: Richard Winger provides some important context.
Interesting NYT analysis.
WaPo: “House Republicans got a big break under California’s new primary system Tuesday, after Democrats failed to get a candidate into the general election for Rep. Gary Miller’s (R-Calif.) swing district.”
NYT: “This year will be the first test of a new kind of election aimed at breaking the partisan gridlock that has seized Congress and state legislatures all over the country. When the change was presented to California voters by a ballot initiative in 2010, advocates said it would usher in a new era that embraced politicians who would be more pragmatic than ideological.”
Mercury News: “They’ve been a colorful part of California’s political landscape for decades — Greens, Libertarians, American Independents and members of the Peace and Freedom Party. But after Tuesday’s election, most of them will be all but invisible — and perhaps on their way to extinction.”
From the new PPIC poll:
Independents More Likely To Support Top-two Primary
Californians will experience a big change this primary election with the advent of the top-two system, approved by voters in 2010. All voters now get a single ballot listing every candidate for their legislative and congressional districts. The two candidates receiving the most votes—regardless of party—will advance to the general election. Asked today about the top-two system, a plurality of likely voters (43%) say it is a good thing for California elections, while 22 percent see it as a bad thing and 27 percent say it makes no difference.
Proponents of this primary reform have argued that it will pave the way for more moderate and independent candidates to succeed. Today, independents are more likely to say the new system is a good thing (49%) than Democrats (43%) or Republicans (39%) are. And while 67 percent of likely voters view the top-two primary as at least somewhat important, independents (41%) are more likely than Republicans (31%) or Democrats (32%) to say it is very important.
The following press release arrived via email:
A Statement by Americans Elect CEO Kahlil Byrd
12:01 A.M., MAY 15, 2012 - Over the past two years, Americans Elect has focused on achieving three clear goals:
· Gaining nationwide ballot access for a third presidential ticket to compete in the 2012 race;
· Holding the first ever nonpartisan secure national online primary at AmericansElect.org; and
· Fielding a credible, balanced, unaffiliated ticket for the 2012 presidential race.
Through the efforts of thousands of staffers, volunteers, and leadership, Americans Elect has achieved every stated operational goal. Despite these efforts, as of today, no candidate has reached the national support threshold required to enter the “Americans Elect Online Convention” this June. (Read a detailed summary of the AE process here and the full rules here.)
Because of this, under the rules that AE delegates ratified, the primary process would end today. There is, however, an almost universal desire among delegates, leadership and millions of Americans who have supported AE to see a credible candidate emerge from this process.
Every step of the way, AE has conferred with its community before making major decisions. We will do the same this week before determining next steps for the immediate future. AE will announce the results of these conversations on Thursday, May 17.
As always, we thank everyone who has participated in this effort and will honor the work, efforts and trust so many people have placed in Americans Elect.