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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: NVRA (motor voter)
“Registering Millions: Celebrating the Success and Potential of the National Voter Registration Act at 20″
It may seem unthinkable now, but as late as the 1980s, Americans in many states had only one option if they wanted to register to vote: Show up in person at a central registrar’s office, which might be open only during restricted business hours and located far from the voter’s home. Even in places where voter registration applications could be distributed outside the registrar’s office, strict limits often applied — such as in Indianapolis where groups like the League of Women Voters were allowed to pick up only 25 voter registration applications at a time. Overly complicated and restrictive procedures meant that fewer and fewer eligible voters were registering — and without registering, they couldn’t vote.
Voting rights advocates knew that America must fiercely protect the freedom to vote for all citizens, regardless of race or privilege. So, they began a multi-year campaign to make voter registration more accessible. Their efforts paid off in 1992 when Congress first passed the National Voter Registration Act (NVRA), only to see President George H.W. Bush veto the bill. Not to be discouraged, the movement kept fighting, and 20 years ago this week, Congress passed the NVRA and President Clinton signed it into law.
Washington Times: “On Friday, three former U.S. Justice Department attorneys filed lawsuits in the U.S. District Court for the Southern District of Mississippi seeking an order to compel election officials in Jefferson Davis County, as well as in nearby Walthall County, to clean up their voter rolls.”
Roll Call: “The Justice Department responded Friday to Sen. David Vitter’s request for more information about its enforcement of a federal voter registration law — a response the Louisiana Republican demanded before deciding whether to drop his threat to block the nomination of Thomas Perez as the next Labor secretary.”
ABA Journal reviews the Arizona voting case before the Supreme Court.
Project Vote: “On January 23, voting rights advocates won a major legal victory on behalf of Louisiana’s public assistance agency clients, the state’s most vulnerable and most marginalized residents. In a 36-page ruling, following a trial in October 2012 in the United States District Court in the Eastern District of Louisiana, Judge Jane Triche Milazzo found that the state of Louisiana violated federal law by failing to offer an opportunity to register to vote to all applicants and recipients of food stamps, TANF, Medicaid, and WIC. The National Voter Registration Act (NVRA) requires that voter registration be offered to all such individuals, whether they seek benefits in person, or by the internet, telephone, or mail.”
You can find the ruling here.
Important report in the Toledo Blade.
It is SCOTUSBlog’s Petition of the Day.
What would we all do without Election Law @ Moritz?
Ohio Lawsuit Seeking Purge of Voter Rolls
Sep. 11 (8:39 AM) - Election Law @ Moritz is now tracking Judicial Watch, Inc. v. Husted. Plaintiffs Judicial Watch, Inc. and True the Vote filed a complaint against Ohio Secretary of State Jon Husted, asserting that Husted has not complied with voter list maintenance obligations of the National Voter Registration Act. Specifically, the complaint alleges that Husted has not made reasonable efforts to remove ineligible voters from voter registration rolls.
Bloomberg: “Pennsylvania, a presidential battleground, agreed to settle a lawsuit brought by activist groups that have pressured at least 15 other states to give welfare recipients the chance to register to vote at agency offices, in a drive likely to benefit Democrats in November. “
The Christian Science Monitor reports.
The Boston Globe offers Brown criticizes voter mailings and Only Mass. sent out voter registrations after lawsuit.
Beyond Affordable Care, beyond Stolen Valor, the Supreme Court took a third very important action today. The Ninth Circuit — first as a panel, then en banc — decided that Arizona’s refusal to accept federal voter registration forms without proof of citizenship was preempted by the NVRA. Two weeks ago, the state asked Justice Kennedy to stay the mandate of that decision, which he did temporarily, long enough for briefing.
Today, the full Court vacated that temporary order and denied a more durable (or permanent) stay, with Justice Alito dissenting. This means that citizens will be able to register in Arizona for this cycle’s elections without first having to produce specific documentary proof of their citizenship.
UPDATE: Reaction from the Lawyers’ Committee.
In a decision released this morning, a federal court declined to issue a temporary restraining order in the DOJ’s NVRA challenge to Florida’s purported purge of noncitizens.
Part of the reason was that the Florida Secretary of State Detzner apparently said that he has abandoned the program (or, at least, the program’s use of a purge list that was wildly inaccurate, including an apparent failure to recognize that Puerto Rican natives are US citizens). But part of the reason was a curious construction of the NVRA, which stops systematic purges within 90 days of an election based on an apparent change of address, but not based on an apparent death or disenfranchising conviction … or, according to the Florida court, apparent noncitizen status. It will be interesting to see whether the government appeals (if only to seek vacatur of an opinion opining on an avowedly abandoned program) on the statutory construction question.
IMO, the 90-day provision exists to reduce the negative consequences of error, and there were (and are) plenty of reasons to be concerned with error here. There are two other lawsuits against the purge program, with legal claims beyond the NVRA; I’ll have more on the purge program more generally in a bit.
Project Vote v. Long: “The question here is whether Section 8(i)(1) of the National Voter Registration Act (“NVRA”), which requires public disclosure of “all records concerning the implementation of programs and activities conducted for the purpose of ensuring the accuracy and currency of official lists of eligible voters,” 42 U.S.C. § 1973gg-6(i)(1), applies to completed voter registration applications. The district court concluded that Section 8(i)(1) does apply to such applications and held that defendants—Virginia election officials—had violated the NVRA by refusing to disclose the completed applications with voters’ Social Security numbers redacted. Because the district court correctly interpreted Section 8(i)(1), we now affirm the judgment.”
It’s not every day that a Project Vote victory gets praised by Christian Adams.
SCOTUSBlog: “FINAL UPDATE Thursday 2:20 p.m. Justice Kennedy has issued a temporary order delaying the Ninth Circuit Court’s ruling, at least until further briefs are filed in the case. The Circuit Court mandate was due to be issued tomorrow, but now will be delayed until at least next Wednesday afternoon. The challengers to the Arizona citizenship proof requirement are to file a brief by Monday afternoon, with a state reply due by noon Wednesday. Earlier today, this post was updated to provide a link to the application, here.”
Houston Chronicle: “Voter registration restrictions imposed by the Texas Legislature last session are unnecessary and make it more difficult to register voters, former Texas Gov. Mark White testified Tuesday in Galveston federal court.”
See also this report.
“Justice Department Files Lawsuit Against Florida Alleging Violations of the National Voter Registration Act”
DOJ Press Release: ” WASHINGTON – The Department of Justice announced today that it has filed a lawsuit against the state of Florida and the Florida Secretary of State in his official capacity alleging that the state has violated its obligations under Section 8 of the National Voter Registration Act of 1993 (NVRA). The complaint, filed today in the U.S. District Court for the Northern District of Florida, alleges that Florida has violated the NVRA by conducting a systematic program to purge voters from its voter registration rolls within the 90-day quiet period before an election for federal office established by the law. In addition, the complaint alleges that Florida’s use of inaccurate and unreliable voter verification procedures violates the requirement in Section 8 of the NVRA that any such program be uniform and nondiscriminatory.”
WaPo editorial: “FLORIDA IS one of a number of states to have recently imposed ill-considered restrictions on voting rights, as it interferes with efforts to register new voters and seeks to purge non-citizens from state voting rolls.”
“Lawyers’ Committee for Civil Rights Under Law, ACLU File Suit to Stop Florida’s Inaccurate and Illegal Voter Purge”
Facing South reports.
The Palm Beach Post reports.
This is a very major development given how close the polling is in Florida and other battleground states for the presidency.
A federal district court has issued a preliminary injunction barring its enforcement of some of its new onerous restrictions on third party voter registration drives as violative of the NVRA (motor-voter law). The restrictions were so bad that the League of Women Voters stopped registering voters there for fear of prosecution. (It was also the subject of this biting piece from Stephen Colbert.)
A snippet from the judge’s discussion of the requirement that registration forms be turned in within 48 hours of signing:
Even so, the state has little if any legitimate interest in setting the deadline at 48 hours. The short deadline, coupled with substantial penalties for noncompliance, make voter-registration drives a risky business. If the goal is to discourage voter-registration drives and thus also to make it harder for new voters to register, the 48-hour deadline may succeed. But if the goal is to further the state’s legitimate interests without unduly burdening the rights of voters and voter registration organizations, 48 hours is a bad choice.
Still, lines must be drawn somewhere, and choosing the specific time limit, so long as the limit is not unconstitutional, is the job of the Legislature, not the court. It is not at all clear that a well crafted 48-hour provision could survive constitutional scrutiny, but that issue need not be decided at this time. This statute and this rule are not well crafted. To the contrary, they are virtually unintelligible, close to the point, if not past the point, at which a statute—especially one that regulates First Amendment rights and is accompanied by substantial penalties—becomes void for vagueness.
I expect the next step will be that Florida will attempt to get this overturned at the Eleventh Circuit, though I think it will be a hard argument to make given the fact-intensive nature of the judge’s ruling and the deferential standard for reviewing such preliminary injunction motions.
If this ruling stands, I expect a large push, especially (but not only) from Democratically-aligned groups, to register voters in Florida this summer.
I have always said that these Florida restrictions, rather than voter id laws, are more likely to have an effect on the presidential election, and other elections.
MORE in this Brennan Center release.
“Massachusetts Citizen and Community Groups Sue Commonwealth for Failing to Provide Voter Registration Opportunities”
Press release: “Yesterday, voting rights advocates won an important legal victory that will ensure that Louisiana’s public assistance agency clients—the state’s poorest and most marginalized residents—will be offered an opportunity to register to vote. In a forceful decision, a federal judge ruled in favor of the Louisiana State Conference of the NAACP that Section 7 of the National Voter Registration Act of 1993 (NVRA) requires that all public assistance clients must be provided with a voter registration application whether they seek benefits in person or by the internet, telephone and mail. Louisiana argued that its public assistance agencies were only required to offer voter registration to those clients who appeared in person.”
Janai Nelson blogs.
“Georgia Agrees to Comply with National Voter Registration Act, Settles Lawsuit Brought by Lawyers’ Committee and Partners”
This press release begins: “A coalition of national voting rights groups have secured a landmark settlement with the State of Georgia to ensure that voter registration is offered to all public assistance applicants. The state has settled a lawsuit, brought by the coalition on behalf of the Georgia State Conference of the NAACP and the Coalition for the Peoples’ Agenda, alleging widespread violations of Section 7 of the National Voter Registration Act of 1993 (NVRA).”
AZCentral.com: “‘We always expected the U.S. Supreme Court to have to decide this one,’ [AZ AG] Horne said, adding that he expects the high court to uphold the entire law.”
One immediate question is whether Arizona will seek review on an expedited basis, to be able to change the rules in time for this year’s election. Even if Arizona does so, it is not clear that the Court would expedite consideration, given what it said when the Supreme Court first saw this case: “Faced with an application to enjoin operation of voter identification procedures just weeks before an election, the Court of Appeals was required to weigh, in addition to the harms attendant upon issuance or nonissuance of an injunction, considerations specific to election cases and its own institutional procedures.Court orders affecting elections, especially conflicting orders, can themselves result in voter confusion and consequent incentive to remain away from the polls.”
“Federal Appeals Court Rules That N.M. Violated Federal Law, Failing to Provide Voter Registration Applications to Public Assistance Clients”
See this press release about this new opinion. From the release:, “The federal Tenth Circuit Court of Appeals ruled yesterday that the State of New Mexico Human Services Department (HSD) violated Section 7 of the National Voter Registration Act of 1993 (NVRA) by improperly withholding voter registration applications from certain public assistance clients. The decision came in a federal lawsuit brought against state officials by a coalition voting rights groups and attorneys, including the Lawyers’ Committee for Civil Rights Under Law, Project Vote, and Dēmos; the Albuquerque law firm of Freedman Boyd Hollander Goldberg Ives & Duncan, and the law firm of DLA Piper, on behalf of Albuquerque resident Shawna Allers. This major development concerned the HSD policy of providing a voter registration application to a public assistance client only if the client specifically requests an application. Section 7 requires New Mexico and most other states to offer voter registration to public assistance clients when they apply for benefits, periodically recertify their benefits eligibility, or submit a change of address for receipt of benefits. Along with HSD officials, the New Mexico Secretary of State shares responsibility for ensuring that State agencies comply with the NVRA.”
Press release: “In a strongly worded order handed down yesterday, U.S. District Judge Charles A. Pannell, Jr. denied a motion to dismiss a lawsuit brought by a coalition of voting rights groups to remedy the State of Georgia’s failure to provide voter registration services at public assistance offices, as required by Section 7 of the National Voter Registration Act of 1993 (NVRA). Judge Pannell ruled that, contrary to the state’s practice, the NVRA requires that public assistance agency clients be provided with the opportunity to receive a voter registration application every time they apply for or renew benefits or submit a change of address. This must include instances where clients interact with the agency by remote means (e.g., by telephone, internet or mail). In addition, Judge Pannell found that, to the extent that Georgia’s public assistance agencies do not presumptively distribute voter registration applications (and, instead, require clients to request them affirmatively), that the State is likely violating the NVRA.”
“Lawyers’ Committee and Partners Settle Indiana Class Action Lawsuit Regarding Compliance with the National Voter Registration Act of 1993″
Project Vote has issued this press release.
This suit is distinct from the NVRA public-assistance-agency enforcement lawsuit just filed by DOJ.
If same-day registration is restored before the next election, will that amount to a same-day registration law that is “in effect continuously” for NVRA purposes?
Otherwise, I imagine there’s a fair amount of work left for Maine to comply with a whole lot of federal obligations that had never before applied…
Update: h/t to Lisa Danetz, at Demos: though Maine allowed same-day registration until this year’s repeal, that practice was apparently universal throughout the state at registrars’ offices, but discretionary at the polls. As such, Maine didn’t qualify for the NVRA exemption. A list of the states qualifying in 1994 is on PDF page 21 of this FEC report (warning: it’s a large file).
“Justice Department Files Lawsuit Against Louisiana Alleging Violations of the National Voter Registration Act”
See this press release from DOJ.