Have a Comment?
Generously Supported By
ELB Feeds and Email Subscriptions
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: theory
Heather Gerken has posted this draft on SSRN (Duke Law Journal). Here is the abstract:
Much of constitutional theory is preoccupied with a single question: What does a democracy owe its minorities? And most of the answers to this question fit naturally into the two categories Albert Hirschman made famous: voice and exit. On both the rights side and the structural side of constitutional theory, scholars worry about providing minorities with an adequate level of influence. And the solutions they propose almost inevitably offer minorities a chance at voice or exit, as if no other option exists. The First Amendment, for instance, offers minorities the right to free speech (voice) and private association (exit).
Exit and voice are not, however, the only options available to a minority group seeking influence. That’s because much of the nation’s administrative structure looks more like Tocqueville’s democracy than Weber’s bureaucracy. In our highly decentralized and partially politicized system, minorities can wield influence over national policy because they routinely administer it. State officials regularly run federal programs, often with governors and state legislators serving nominally bureaucratic roles. Federal policy is often implemented by local juries and local prosecutors, state and local school boards, and state-created agencies. Because national minorities often constitute local majorities in the United States, these institutional arrangements ensure that those with outlier views help set federal policy. Voice and exit thus aren’t the only paths of influence for minorities. Minorities can also exercise agency in their ongoing quarrel with the center because they are often the center’s agents.
Retooling Hirschman’s frame to include agency, then, doesn’t just draw our attention to an underappreciated avenue of minority influence. It raises questions as to why voice and exit have entirely dominated constitutional theory — why scholars who are interested in minority empowerment have overlooked the role that administrative arrangements can play in furthering that goal.
Jim Gardner has posted this draft on SSRN. Here is the abstract [update: it appears that only an abstract appears right now with no paper to download]:
Deliberative democracy offers a distinctive and appealing conception of political life, but is it one that might be called into service to guide actual reform of existing election law? This possibility seems remote because election law and deliberative democracy are built around different priorities and theoretical premises. A foundational area of disagreement lies in the treatment of majorities. Election law is structured, at both the legislative and constitutional levels, so as to privilege majorities and systematically to magnify their power, whereas deliberative democracy aims at privileging minorities (or at least de-privileging majorities). The main purpose of the election law now on the books is to narrow electoral choice; it seeks at every step to exclude views from public conversation in a process of winnowing out those that command the support only of a minority. Deliberative democracy’s goals and methods, in contrast, stress at every turn the inclusion of many voices, especially those of minorities and of the socially and politically excluded. Deliberative democracy’s goal is not to identify a majority entitled to rule, but to destabilize and transform that majority by exposing its members to opinions and beliefs they do not already hold. Election law resists such a process. As a result, any attempt to incorporate principles of deliberative democracy into the design of election law faces serious and deeply entrenched obstacles.
On the other hand, deliberative democracy may well have a valuable role to play by helping to make the process of public opinion formation outside election campaigns fairer, better informed, and more deliberative. This is in any case where most of the real action takes place: public political opinion is not formed to any significant degree during the brief season of elections and their formal campaigns – within, that is to say, the small slice of political life that falls within the domain of election law proper. On the contrary, public political opinion is formed continually, and therefore mainly between elections. Consequently, if the process of public political opinion formation falls short of deliberative ideals, deliberative democracy can do the most good by addressing itself to the arena of quotidian, non-electoral politics.
Déjà Vu All Over Again: Courts, Corporate Law, and Election Law
Heather K. Gerken and Michael S. Kang
Translating Fiduciary Principles Into Public Law
Ethan J. Leib, David L. Ponet & Michael Serota
UVa report: “Robert Bauer ’76, general counsel to President Barack Obama’s re-election campaign and a former White House counsel, said Monday that an anti-reform movement has been dismantling rules that aim to protect confidence and integrity in government.”
Chad Flanders has posted this draft on SSRN. Here is the abstract:
Election law struggles with the question of neutrality, not only with its possibility – can election rules truly be neutral between parties? – but also with its definition. What does it mean for election laws to be “neutral”? This paper examines one form of election law neutrality, what I term “veil of ignorance rules.” Such rules are formed in circumstances where neither party knows which rule will benefit its candidates in future elections.
In my essay, I consider the existence of veil of ignorance rules in two recent election law controversies: the rule that write-in ballots must be spelled correctly (in the Lisa Murkowski Senate race in Alaska), and the rule that a candidate must be a “resident” of the city in which he plans to run for mayor (Rahm Emanuel’s candidacy for Mayor of Chicago). Both rules can plausibly lay claim to being formed in conditions where neither party could know, ex ante, which rule would benefit its own candidates.
Veil of ignorance rules are interesting in their own right, but they also suggest a possible modification in what Rick Hasen has recently dubbed “the democracy canon.” The canon suggests that ambiguous election law rules should be read in a way that maximizes voter choice and voter enfranchisement. But if there are some rules that are neutral, because formed behind a veil of ignorance, they may deserve a type of deference not due to rules that were formed with an eye toward partisan advantage – even if those rules serve to limit voter participation.
Moreover, to the extent that the rules in the Murkowski and Emmanuel cases were neutral, upsetting them means upsetting a prior, legitimate, democratic decision. Voter participation and voter choice (that is, popular democracy) are not the only hallmarks of democratic legitimacy. Legislative decisions can also be democratic. The democracy canon only upholds one conception of democratic legitimacy. It is not, I conclude, the only one that can or should guide us in deciding close election law cases.
I very much look forward to reading this–not only because it discusses the Democracy Canon but also because I am a big fan of Chad Flanders’ work!
Jim Gardner has posted this draft on SSRN (forthcoming, St. Louis U. L. Rev.). Here is the abstract:
Democracy does not implement itself; a society’s commitment to govern itself democratically can be effectuated only through law. Yet as soon as law appears on the scene significant choices must be made concerning the legal structure of democratic institutions. The heart of the study of election law is thus the examination of the choices that our laws make in seeking to structure a workable system of democratic self-rule. In this essay, written for a symposium on Teaching Election Law, I describe how my Election Law course and materials focus on questions of choice in institutional design by emphasizing election law’s connection to two fields with which it is inextricably allied: democratic theory and empirical political science. This enriched context reveals election law for what it truly is: the institution that bridges the gap between our aspirations for, and the frequently messy reality of, our political lives. It is the middle term in an equation that specifies whether and to what extent we realize perhaps the most significant dream of contemporary human beings: to live well under a just and lasting democracy.
E. Frank Stephenson has written this article for Public Choice. Here is the abstract:
Open primaries create the possibility of strategic crossover voting. On his March 3, 2008 program and subsequent broadcasts, radio personality Rush Limbaugh called on his listeners to extend the Democratic presidential contest by crossing over to vote for Sen. Hillary Clinton. Using voter registration data from North Carolina and election return data from Indiana, North Carolina, and Pennsylvania (states with open, semi-closed, and closed primaries, respectively), I find no evidence of a Limbaugh-motivated switch in political party registration or of a large or statistically significant Limbaugh-motivated increase in voting for Sen. Clinton.
The California Law Review has now published a symposium including Rick Pildes’s important article on the rise of partisanship and responses from Paul Frymer, David Kennedy, Michael McConnell, and Nolan McCarty.
Ethan Leib and Chris Elmendorf have posted this draft on SSRN (forthcoming California Law Review). Here is the abstract:
Too often popular political power – whether it is in the form of direct democracy or other more innovative forays in participatory or deliberative democracy – presents itself as a counterweight to the political power parties wield. Yet setting up “popular democracy” and “party democracy” in opposition to one another in the American political landscape is not only unnecessary but also pathological: it thwarts an understanding of their potential for mutual enrichment. Popular democracy and party-based representative democracy in the American states each have characteristic limitations. Mass popular democracy – the ballot initiative and the referendum – presents a daunting informational challenge for ordinary voters. Popular democracy in its more selective, deliberative forms gives rise to unanswered questions about agenda-setting and legitimation. Meanwhile, party democracy as practiced in the American states often fails to realize the virtues claimed for it, because structural features of state government occlude party-based accountability, and because parties may not develop coherent, competitive state-level brands. We argue that institutional designers can use parties to solve some of the characteristic problems of popular democracy, and popular democracy to improve the functioning of party democracy. We illustrate our claims with a discussion of two seemingly disparate problems: state budget stalemates, and the design of state constitutional conventions.
I read an earlier draft of this very interesting paper. Recommended!
Chad Flanders has posted this draft on SSRN (Alaska Law Review). Here is the abstract:
Both Joey Fishkin’s and Justin Levitt’s responses to my article, “How Do You Spell MURKOWSKI?” deal thoughtfully with the deeper questions raised by the Murkowski litigation. They both wonder, in various ways, what the right way to think about voter assistance should be. But they approach the issue from very different angles. Fishkin focuses on the state’s obligation to assist voters: to what extent, and in what ways, is the state obligated to help voters vote? Levitt approaches the question of voter assistance from nearly the opposite angle: what responsibilities do voters have in making sure that their vote counts, and when are they properly considered “at fault” when their vote is cast incorrectly? In my brief response, I want to raise a few questions of my own about Fishkin’s and Levitt’s analysis of the right to vote.
I have read the others in this symposium (Flanders’ original piece, and the Levitt and Fishkin replies). I’m looking forward to reading this one as well. The whole series is short and interesting.
Rick Pildes, with a new piece on elections exceptionalism. From the abstract:
This essay asserts that the strongest legal arguments for justifying regulations of election financing, such as electioneering paid for out of a corporation’s or union’s general treasury funds, ultimately rest on the view that elections should be considered a distinct sphere of political activity for constitutional purposes. Elections should be conceived as distinct from the more general arena of democratic debate, both because elections serve a specific set of purposes and because those purposes arguably can be undermined or corrupted by actions such as the willingness of candidates or officeholders trade their votes on issues for campaign contributions or spending. Given this risk of corruption of the political judgment of officeholders, regulations of the electoral sphere – including how elections are financed – might be constitutionally permissible that would not otherwise be permissible outside the electoral sphere, including in the arena of democratic debate more generally. The essay argues that this is the form of argument best structured to be accepted within the American constitutional tradition and that is necessary to justify measures such as ceilings on campaign contributions, disclosure of campaign spending, and limits on the role of corporate and union electioneering. If such regulation would be desirable as a policy matter, its permissibility would depend on the ability to develop First Amendment principles permitting such regulation while still prohibiting regulations that some would see as somewhat similar in non-electoral environments.
Even if the Supreme Court has implicitly rejected this argument in Citizens United (without directly confronting the argument), the various possible ways of responding constitutionally to the decision, through federal or state legislation, administrative regulation, or corporate governance rules, depend on conceptualizing clearly the nature of the underlying problem and the justifications for the specific policy response being adopted. Whatever the merits of any particular response, this essay argues that the best underlying justification for such responses will depend on recognizing the distinct values, purposes, and justifications that underwrite the role of elections in democratic societies.
As with all of Rick’s work, I’m looking forward to reading this.
The world in which we live, a world in which law pervades the practice of democratic politics—from advance regulation of public assemblies to detailed rules governing
elections—is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today.
Exposing this history challenges two core assumptions that drive the work of contemporary scholars who write about the law of the American political process.
First, a study of the nineteenth-century mode of regulating politics belies the existing literature’s assumption that law must extensively structure democratic politics. Second, this account of democracy in nineteenth-century America serves as a reminder that elections, political parties, and voting, while critical to democracy, are not the whole deal. It thereby challenges law of democracy scholars to move beyond the existing literature’s narrow conception of democracy as elections and to consider more broadly the practice of democracy in America