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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: voting technology
Overall, these patterns suggest that the partisan implications of online voter registration are unclear. Registered Republicans appear to more often use Maryland’s online system to initiate a new registration while Democrats use it to update an existing registration. We, of course, do not know how these people would have behaved if online voter registration was unavailable. However, another important lesson appears to be that online access has not matured to the point yet where an online system can substitute for good old paper.
“More than a decade after HAVA, it’s time to go shopping; Counties and states begin purchasing new voting equipment”
That’s the lead story in this week’s Electionline Weekly.
The Brad Blog speaks to LA County Registrar-Recorder Dean Logan. If you can get past the breathlessness, there’s a lot of interesting stuff in here.
Press release: “Sacramento – Assemblymember Philip Y. Ting (D-San Francisco) presented the merits of legislation he authored to create a pathway to online voting for Californians. AB 19, heard in the Assembly Elections and Redistricting Committee today, would allow counties to explore the utilization of secure voting systems with a goal of improving election-day efficiencies, promoting increased access to voting and improving participation in the democratic process. The bill passed out of the committee on a 4 to 2 vote.”
Joe Hall: “This past week I was at the kick-off meeting of the LA County Voting System Assessment Project’s (VSAP) Technical Advisory Committee. The VSAP is Registrar/Clerk Dean Logan’s intense and groundbreaking effort to design, develop, procure and implement a publicly owned voting system. I am honored to be asked to serve on such an important body.”
“University of South Carolina professor hacks Courier-Journal online poll to ‘get the discussion going’”
An unscientific online poll conducted on The Courier-Journal’s website was hacked Thursday by two University of South Carolina students and a professor.
The poll, hosted by Polldaddy, asked website viewers, “Should overseas U.S. military personnel be allowed to vote via the Internet?” It referred to an initiative by Kentucky Secretary of State Alison Lundergan Grimes to make voting easier for overseas personnel.
Although most respondents had voted “yes” Thursday afternoon, the poll showed 91 percent opposed by the time it was taken down Friday by The Courier-Journal. By that time, the poll had logged 67,121 votes, far more than the 2,000 to 4,000 votes typically recorded by The Courier-Journal’s online polls. Editors said that the purposely skewed results no longer represented the views of the website’s users.
The hacking was overseen by Duncan Buell, a computer science professor at the University of South Carolina who monitors electronic voting.
You can find a related press release at this link. It begins: “Should we take an online vote on the definition of ‘irony’?”
Courier-Journal: “As Kentucky Democrats make a last-minute push to allow U.S. military personnel overseas to vote online, Florida is reporting what appears to be the first case of someone trying to manipulate U.S. voting through the Internet.”
Let me be clear (and for reasons I’ve spelled out in The Voting Wars). This country is not ready—and not close to ready–for secure Internet voting. This would be a huge mistake.
An attempt to illegally obtain absentee ballots in Florida last year is the first known case in the U.S. of a cyberattack against an online election system, according to computer scientists and lawyers working to safeguard voting security.
The case involved more than 2,500 “phantom requests” for absentee ballots, apparently sent to the Miami-Dade County elections website using a computer program, according to a grand jury report on problems in the Aug. 14 primary election. It is not clear whether the bogus requests were an attempt to influence a specific race, test the system or simply interfere with the voting. Because of the enormous number of requests – and the fact that most were sent from a small number of computer IP addresses in Ireland, England, India and other overseas locations – software used by the county flagged them and elections workers rejected them.
Computer experts say the case exposes the danger of putting states’ voting systems online – whether that’s allowing voters to register or actually vote.
The East Valley Tribune reports.
“17 Computer Scientists: Invest More in Military Internet Voting; Letter: Internet voting only option for military “to achieve first class voter status””
The latest issue of NCSL’s “The Canvass” is now available.
For the past month, the election community has been focused to different degrees on President Obama’s Election Night observation that “we need to fix” problems that caused long lines at the polls on Election Day.
Recently, the President received two separate letters from computer scientists and advocates concerned about the role of technology in elections.
The first, from California Voter Foundation founder and President Kim Alexander and 28 co-signers, focuses heavily on the concept of verifiable voting systems and urges the Administration to put a federal stamp on the problem….
The second letter, signed by computer scientist Barbara Simons and 49 co-signers (many of whom appear on the first letter but also including some election officials), covers much of the same territory but contains stronger language on the perceived danger of Internet voting…
Read this letter calling for paper trails and against internet voting.
As secretary of state, I want to expand on this success and explore the possibility of one day not just registering online, but in fact voting online,” [State Sen. Leland] Yee said in a statement. “If we can safely pay our bills via the Internet and board an airplane with a smartphone, we should be able to securely and easily vote electronically as well.”
I explain in Chapter 6 of The Voting Wars why such thinking is misguided and dangerous.
Maria: Which of the voting ‘conspiracy theorists’ are doing the most harm, in your view, and how?
Joe: Well, Fitrakis and Bello really seem to be getting widespread play this year for some reason. I can’t tell you how many otherwise smart and discerning people have asked me about both their two recent stories on “Romney owns voting machines in Ohio” and this new “scary last-minute software update” one. The frustrating part is that in other times of the year people like myself would have time to carefully debunk this well-manufactured drivel, but at the moment I’m too concerned with real issues, like making sure voters on election day and volunteers in the field have the information they need, however mundane or technical, to make sure all registered, eligible voters can cast a ballot. Luckily, in the case of the “Romney owns voting machines” story, the reliable fact-checking site Snopes.com has really hit it out of the park.
As to who’s doing the most damage… chalk up Naomi Wolf in that category as she seems to think that getting rid of the secret ballot would solve all our problems.
What an amazingly stupid idea! She probably doesn’t know—why would she?—that voting before we instituted the secret ballot in the US (around 1900 for most states) was a payday for most voters, and that when we instituted the secret ballot voter turnout dropped like a rock since vote buyers could no longer be assured that they were getting what they paid for.
Also, I’m not a big fan of the Brad Blog, as he can be very sensational and ego-driven. However, he often has good facts and original analysis, so while I don’t visit his site, I don’t immediately write-off what he has to say, just his tone and likely his policy recommendations.
NPR reports. I expect Tamara Keith, the reporter on this story, is going to get the same tin-foiled hate mail that I’ve been getting for rejecting the left-wing election truthers who are convinced that the voting machines are rigged for Romney.
Today’s “To the Point:”
Could Voting Machines Steal the Election? (1:07PM)
In the year 2000, “hanging chads” on Florida’s paper ballots put the presidential election in doubt. Two years later, Congress passed the Help America Vote Act, or HAVA, which provided federal subsidies for states to buy electronic voting machines that don’t use paper at all. Dispute is raging over what it could mean for the integrity of next week’s election. Both campaigns and many political pundits say Ohio could decide the election. How secure are its voting machines?
- Victoria Collier: writer and election integrity activist, @Votescam
- Steven Rosenfeld: AlterNet, @srose14
- Dan Tokaji: Ohio State University
- Ion Sancho: Leon County Elections Division
Absolute must-read from Steven Rosenfeld, as a counter to the left’s election truthers.
“Romney Family Investment Ties To Voting Machine Company That Could Decide The Election Causing Concern”
This item originally appeared at Forbes.
Important questions from Doug Chapin.
“The state of the U.S. election system: New report from MIT and Caltech notes gains in voting-machine technologies, but warns they could be cancelled out by errors introduced through mail and Internet voting.”
Press release: “When it comes to the integrity and accuracy of voting systems in the United States, the good news is that widespread technological upgrades have largely eliminated the voting-machine problems that were so evident when Florida’s disputed recount determined the 2000 presidential election. The bad news is that some of those improvements in accuracy could be undermined by increases in early voting through the mail, which is turning out to be a relatively low-accuracy method of voting, according to a new research report released by MIT and the California Institute of Technology.”
Once I have a chance to read this report, I plan to blog more about it. Doug Chapin offers some early thoughts here, and promises more posts about it as well.
NYT: “Computer security experts have identified vulnerabilities in the voter registration databases in two states, raising concerns about the ability of hackers and others to disenfranchise voters.”
“They could influence an election with 20,000 votes for less than a penny a head,” said J. Alex Halderman, one of the computer scientists who first discovered Washington’s loophole. “That would be a great return on investment for them.”
This item in the Wall Street Journal begins:
A decade after Dana Debeauvoir helped change Travis County, Texas to an all-electronic voting system she still expects to be falsely accused of fixing the coming election, just as she had in the last two presidential races. The clerk, who has administered voting for 25 years in the county that includes Austin, says the public has remained mistrustful of the ballot system, where voters pick candidates directly from a computer screen, without marking a piece of paper. “There have been so many hard feelings,” says Debeauvoir. “You get people saying ‘I know you have been flipping votes.’”
Chapter 6 of The Voting Wars discusses the fights over voting technology.
The Cincinnati Enquirer reports. “An Ohio state auditor’s report in late 2011 offered Butler County officials a choice that seemed a sure-fire Election Day win: get rid of problem-plagued voting machines, replace them with a more reliable system and save about $905,000 a year in the process. The only problem: Butler County couldn’t afford it.”