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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: ballot access
“699 Comments ‘Birther’ controversy: Arizona election official says it’s ‘possible’ Obama might not make ballot “
ABC News reports. WaPo has the group’s statement, which at least some opponents of AE thinks leaves wiggle room for something. After all, as Ken Vogel noted on Twitter, the group has a nice package of ballot access in a number of states. Richard Winger too notes the potential for the group’s ballot access use in the future.
Meanwhile Lessig responds to Lumea on neutrality and AE, something which seems pretty moot.
I expect Buddy Roemer will continue to try for the Reform Party nomination and he will continue to be a non-factor. I’d keep an eye instead on Gary Johnson.
Why did AE fail? First it is hard to build a movement around ballot access rather than a candidate. Second, despite what partisans say on both sides, Obama and Romney are close enough to the center that there is not really room for a radically different candidate in the middle.
And then there was the bad press from the group’s democracy deficit, which was a self-inflicted wound.
Ballot access for third party candidates in this country is way too hard, and AE had a good idea to get around it. But its execution did not work, especially how it tried to present itself as a publicly-driven force but a core group kept tight control of its rules and expected substantive outcomes.
When is Tom Friedman’s column running when he explains why Americans Elect was not the next big thing?
Weigel explains what went wrong.
The discussion continues, even if Americans Elect may not.
“Tom Friedman said Americans Elect would be Amazon.com & an iPod wrapped up in the blogosphere. And now it’s Pets.com.”
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.
BLT: “The District of Columbia Court of Appeals has denied former presidential candidate Ralph Nader’s latest attempt to set aside a Pennsylvania court’s judgment against him related to his 2004 run for president.”
AE Transparency explains. See also With Failures Rapidly Mounting, What Is Americans Elect’s End-Game?
“ACLU/SC Sues California Secretary of State for Excluding Minor Political Parties from November Presidential Election Ballot”
Press release: “Today, the ACLU of Southern California is filing suit against California Secretary of State Debra Bowen on behalf of the Justice Party and the Constitution Party of California, which seek to have their nominees for President and Vice President included on November’s presidential election ballot, and individual voters who support the groups. The case was filed in U.S. District Court for the Central District of California.”
“How S.C. 2012 primaries imploded (+ survey); Court ruling on filing law dumped 1-in-5 candidates from ballot”
The State reports [corrected link].
Politico on Americans Elect: Third-party candidate for POTUS: Anyone? Walker?
AEI Transparency reports.
He makes his case atThe Atlantic Wire.
Earlier, Lessig and I had an exchange about the serious problems I have with Americans Elect’s transparency and its democracy deficit.
I have also discussed Lessig’s campaign finance reform ideas in detail in a forthcoming Harvard Law Review book review (which also reviews a book by Jack Abramoff).
Cert. Petitions Filed by Democrats and Libertarians in Renewed Challenge to Washington’s “Top Two” Primary
Richard Winger has the documents.
Adam Bonin: “With all due respect, I’m not quite sure that Monday’s Pennsylvania Supreme Court decision regarding out-of-district circulators means quite what commentators seem to think it does. In short, while the decision clearly eliminates that requirement as to independent and minor party candidates seeking ballot access, I am not sure that it offers any relief to candidates seeking to appear on the primary ballot for one of the major parties.”
The Guardian offers this report, with the subhead: “Group says their plan to take on America’s two-party system is on track – but a lack of engagement is hampering their cause.”
“Independent, Schmindependent: Forget the Rules and the Rhetoric, the Reality Is That Americans Elect Is All About the Duopoly”
John Lumea’s latest.
Richard Winger blogs.
“Don’t let Americans Elect muddy the 2012 race; A third-party candidate could get enough votes in a key swing state in November to toss the presidency to the otherwise loser.”
Harold Myerson has written this column for the LA Times.
Alex Pareene: “This, though, was penned back when they were expecting a Michael Bloomberg to sign up for their effort. Now they can’t even manage an Olympia Snowe. Primary voting begins in less than two months, and the only declared candidate who actually meets those qualifications is … Buddy Roemer. At the moment, no candidate, declared or drafted, is on pace to actually meet the number of clicked supporters (10,000 for establishment candidates, 50,000 for outsiders) necessary to qualify for the ballot, which will almost certainly necessitate major rules changes. Americans Elect, then, is a high-profile third-party ballot access campaign without a candidate.”
Surprise, surprise. He’s “intrigued” by Americans Elect.
“Formal Call for Reversal of Americans Elect Board Of Directors Decision #1, a Violation of Rules and Bylaws”
This will be interesting to watch.
More on Americans Elect and mischief coming from me on Monday.
Ballot Access News reports.
The deadline to get on the primary ballot for Republican and Democratic candidates is March 15. Any interested candidate will need to get 2,000 certified signatures by that date (which means well above 2,000 total if you figure in the names that will be thrown out), or they won’t be on the ballot.
The logistical requirements of actually meeting that hurdle are very high. This is not something that can be done by a political novice in two weeks – indeed it is a difficult task for established figures.
In the 2010 gubernatorial contest, both Democrats and Republicans were having a difficult time getting enough signatures, and most campaigns only managed to finish collecting them a few days before they were due. That was with a year (sometimes more) lead time. People now have two weeks.
Unless something changes – I have heard mention that the Maine legislature has the capability to push that date back, but my sources say there have been no conversations about that yet – that means that the only people that can pull it off are folks with already established political machines, or people with the money to instantly purchase the manpower to get it done.
This has implications for more than just the Senate race. If Chellie Pingree or Mike Michaud (or both) decide to run for the Senate seat, that means that potential candidates to replace them in the House of Representatives would have to meet that requirement as well
Jonathan Chiat ponders.
I’ll have more to say on Americans Elect soon.
MORE from the NYT on possible third party candidates.
Americans Elect has an official policy of neutrality (rule 6.1) when it comes to which candidate should get the Americans Elect nomination. Yet one day after Tom Friedman wrote a fawning New York Times column promoting David Walker as a potential presidential candidate (without mentioning Walker’s membership on the AE board), I received this press release:
FOR IMMEDIATE RELEASE
BOARD MEMBER DAVID WALKER EMBOLDENS VOTERS TO FACE THE CRITICAL CHALLENGES OF OUR NATION
Walker currently serves as Founder and CEO of the Comeback America Initiative, which engages the public and policymakers on fiscal issues and nonpartisan solutions that can achieve bipartisan support. Walker understands that Americans Elect’s online nominating process for president combined with its independence from the two major political parties has the ability to shock the current political system in a positive manner.
Walker is an author of three books, a national co-founder of No Labels, a member the Accounting Profession’s Hall of Fame, the Sons of the American Revolution, and the Trilateral Commission. His experience in these areas make him an important resource for Americans Elect moving forward.
“This nation has faced great challenges in the past, and it’s always risen to successfully address those challenges. It’s time to do so again.” said Walker. “Americans Elect is providing the American people with more choice and competition in connection with the nation’s two highest offices. It offers an opportunity to break the partisan gridlock and to bring to life the first three words of the U.S. Constitution – ‘We the people.’”
“Now more than ever, this country needs truth, leadership and sensible, nonpartisan solutions to the key challenges that we face. The Americans Elect process will give every registered voter – no matter their party or point on the political spectrum – a say in how best to change course and right our ship of state so that our future will be better than our past.”
Let’s Make History!
“Irony. They won’t disclose donors’ identities, but they will disclose voters’ identities”
–Pamela Smith, President of Verified Voting, commenting on the news that there is no secret ballot in the Americans Elect Internet nominations process.
I have been very critical of Americans Elect’s rules and procedures for conducting its nomination process, including its use of the Internet for voting. William Kelleher, who is generally a supporter of Internet voting, wrote to Americans Elect to ask if they have a secret ballot for their Internet voting process. Here is the response he received.
*Dr. Kelleher & Andrea,
Thank you for the security questions. I hope my answers will be sufficient.
1. Each vote is tied to name. Necessary so we can audit the convention afterwards. This is not a secret vote (like the general election is).
2. Only our technology team has access to the server which is led by Josh Levine. Each round of voting will be followed up by an audit. Per our rules:
5.4 Independent Candidate Vote Integrity Compliance. The voting integrity audit shall be conducted by an independent auditor in accordance with standards published by the Technology Integrity Committee to be completed within 48 hours after any Candidate Votes, or such additional time as the Board may allow for good cause. The Board shall have the ability, on recommendation of the independent auditor, to declare any vote a nullity in the event of a material breach of voting security and to order a re-vote upon email notice to all Delegates.
Alice M. Skelton
National Engagement Director
What remains unclear at this point is whether AE will mail paper receipts showing how people voted to AE voters, a move which can facilitate vote buying.
Ballot Access News reports.
Josh Gerstein reports. Maybe better to lose in the courts then get trounced in his own backyard?
From the challengers: “Our Brief shows that California’s Top Two Primary Law violated the rights of Californians in two troubling ways. First, it unconstitutionally violated the rights of minor-party candidates, by forcing them to falsely state on the ballot that they have ‘No Party Preference’. Second, the Top Two Primary law disenfranchised all voters who cast write-in votes in the general election.”
While the issues are certainly distinguishable from those addressed in the recent top-two primary case involving Washington State recently decided by the Ninth Circuit, I find it very curious that the brief does not even cite this case, which certainly addresses issues of constitutional standards of review applicable to minor party constitutional challenges.
Ballot Access News reports on what could be a significant ruling for minor parties.