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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
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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: military voting
A Pew Data Dispatch. As I’ve argued in The Voting Wars, we have to do much more to enfranchise our overseas military personnel—especially with problems with voter registration (registration rates are very low).
“17 Computer Scientists: Invest More in Military Internet Voting; Letter: Internet voting only option for military “to achieve first class voter status””
CBS News: “Tampa-area resident and Navy captain Peter Kehring has spent more than 30 years in the U.S. military. But due to Florida GOP Gov. Rick Scott’s recent purge of voter rolls, Kehring will not be able to cast a vote on Election Day, reports Tampa CBS affiliate WTSP….And he’s not alone: Kehring is among 30 active and reserve service members in the Tampa area who have contacted the Hillsborough County Supervisor of Elections office, according to WTSP.”
This is the danger of voter purges just before the election—false positives which disenfranchise eligible voters. Voter cleanup needs to happen in the off-season. Better yet, we need to rationalize and nationalize registration for federal elections.
This item appears at The Weekly Standard.
LANSING, Mich. (AP) – Secretary of State Ruth Johnson and Attorney General Bill Schuette want clerks in two dozen Michigan communities to extend the counting deadline for absentee ballots sent to residents overseas and in the military.
Following up on this post, Eric Eversole sends along these thoughts:
The point that must not be forgotten is that the Federal Voting Assistance Program (FVAP) failed to provide military voters the assistance required under federal law. The most recent allegations are an attempt to deflect criticism from FVAP’s failures and cloud the real problem of low military voter participation rates.
Contrary to Mr. Carey’s claims, the Military Voter Protection Project (MVP Project) considered whether to include “automatically” generated absentee ballot requests in our analysis of the 2008 election data. Under federal law, as it stood in 2008, states were required to send out absentee ballots to military and overseas voters for two federal election cycles. In other words, if a military voter requested an absentee ballot for the 2006 federal election, the state not only had to send absentee ballots for the 2006 election cycle, it also automatically send absentee ballots for the 2008 federal elections as well.
Federal law subsequently changed in 2009, but we decided to include automatic absentee ballots in our analysis for two reasons. First, they were still valid absentee ballot requests for the 2008 election. Second, a vast majority of these ballots were cast and counted. This latter fact is evidenced by the 2008 post-election report by the Election Assistance Commission (EAC), where nearly two-thirds of these ballots were received by the voter and were returned to the local election official to be counted.
For us, it came down to this: if you are trying to gauge the number of potential participants in an election, why would you exclude valid absentee ballot requests, especially when a vast majority of those ballots were returned and counted? Regardless of the source, they represent thousands of real military and overseas voters that participated in the 2008 election. Now, they represent thousands of military and overseas voters that may not be able to participate in the upcoming election.
Nor should anyone buy the false claim that military and overseas voting is actually up in 2012. That claim can only be made by ignoring the 231,000 automatic absentee ballots that were sent out and the 150,000 that were returned to local election officials to be counted. It makes no sense to exclude these ballots unless you were trying to understate actual participation rates in 2008.
If you look at the number of military and overseas ballots that were counted in 2008, it shows you how far we must go in the coming weeks to meet 2008 totals. Take Florida, for example: in 2008, the state counted 95,014 absentee ballots from military and overseas voters. Yet, as of September 22nd, the state had sent only 65,173 absentee ballots to these voters.
The same holds true for Virginia. In 2008, Virginia counted 28,816 military and overseas ballots in the presidential election, but has sent out only 12,292 for this year’s election as of September 22, 2012. It doesn’t take much to figure out that it will be difficult to meet the 2008 participation levels, even if every single ballot is returned and counted.
The more interesting discussion is not whether the number of absentee ballots will be down this year, but how much of the decrease can be blamed on FVAP, and most importantly, how we ensure that our military voters are not disenfranchised in this election. Some commentators have pointed to the reduction in overseas deployments and a reduction in activated National Guard members, as an excuse for reduced absentee ballot requests. Others have pointed to the removal of the automatic absentee ballot requests from federal law and how that may have impacted participation.
These factors, however, do not overcome FVAP’s failure to implement a key provision of the MOVE Act—one that would have created a more systematic basis for allowing military voters to register and request an absentee ballot. That process was supposed to be governed by the National Voter Registration Act or “Motor Voter.”
As many in the election community have long known, Motor Voter has played a critical role in helping all Americans, especially those in underrepresented communities, to participate in our elections. When Congress passed the MOVE Act in 2009, it determined that military members should be entitled to the same benefits when the check into a new duty station. Yet, that didn’t happen.
FVAP and the Pentagon’s failure to implement this requirement must be the central point in this discussion. If we are going to improve the participation rates by military voters, they need a more systematic process to register and request an absentee ballot. Until that occurs, our military members will continue to be one of the most disenfranchised groups in the United States.
Important report from Military.com: “According to Carey, the problem is not the Pentagon and it’s not flagging voter interest, but MVPP’s analysis. MVPP either missed or ignored the fact that under the law in effect for 2008, election officials were required to send out thousands more ballots than were actually requested. At the time, the law mandated that absentee ballots be sent out to those who submitted a current ballot application and also to anyone who had applied for an absentee ballot in the prior election, 2006. That was bound to create a significant spike in the number of ballots mailed out, according to Carey. Trouble is, some of it was illusory.”
I suspect we will hear a response from Eric Eversole to this, although he did not respond to Military.com’s request for an interview.
AP: “Republican Mitt Romney’s campaign has sent letters to election officials in Wisconsin, Mississippi and Vermont demanding that the deadline for receiving ballots from military and overseas voters be extended.”
“GOP-backed military coalition drops veil: Obama seeks to ‘undermine the rights of military voters’”
Michael McDonald: “The number of absentee ballot applications is down by nearly half from 2008. In 2008, election officials had received 37,539 applications compared to 20,695 in 2012, or 45 percent fewer applications. The number of applications from registered Republicans is down more than Democrats, which are also down. The percentage of registered Republicans declined by 55 percent while the percentage of registered Democrats declined 35 percent. Thus registered Republicans composed 51 percent of the earliest absentee ballot applications in 2008 and 42 percent in 2012. These numbers appear to confirm a report from Chapman University finding military absentee ballot applications are down from 2008.”
TPM: “The Pentagon’s inspector general said in a report issued Tuesday that the federal government’s efforts to assist military voters under the Military and Overseas Voter Empowerment Act aren’t working thanks to underfunding and ineffective outreach to younger military personnel. Under the MOVE Act, every military installation that isn’t in a war zone is required to establish a voting assistance office. But the Department of Defense inspector general tried contacting every one of those offices and wasn’t able to contact half. The Air Force was the worst offender. The inspector was only able to contact 29 out of 74 offices.”
This is important.
“Report says fewer in military register to vote; Absentee ballot requests from military members and spouses are alarmingly low this election year, a voter advocacy group says.”
In this earlier post, a reader suggested that a military ID for a retiree which says “indefinite” would not be usable to vote under PA’s voter id law. I asked whether this was correct.
Thanks to a reader who points me to this PA website which says in listing acceptable documents: “An unexpired U.S. military ID – active duty and retired military (a military or veteran’s ID must designate an expiration date or designate that the expiration date is indefinite). Military dependents’ ID must contain an expiration date and must not be expired.”
Thanks for the information, and good news.
I have written this cover piece for the Sunday San Diego Union-Tribune opinion section. It begins:
It’s the election season, and the battle for the presidency and control of Congress is being fought not just through voter registration drives, endless campaign ads, and stadium rallies, but also in courts across America. Litigation over election rules has become increasingly commonplace since the disputed 2000 election in Florida, which led to the United States Supreme Court choosing George W. Bush over Al Gore. And as in 2000, the question of military voters and military ballots is back in the media and legal spotlight, with Republicans unfairly accusing Democrats of being anti-military.
A federal district court in Ohio will soon decide the Obama campaign’s challenge to an unusual Ohio law. The law allows military voters and overseas voters, but no other voters, the right to cast an in-person ballot in the three days before Election Day. Democrats argue that this law is unconstitutional because it “requires election officials to turn most Ohio voters, including veterans, firefighters, police officers, nurses, small business owners and countless other citizens, away from open voting locations, while admitting military and nonmilitary overseas voters and their families who are physically present in Ohio and able to vote in person.”
The claim that Democrats were trying to undermine the military vote was especially ironic. The only significant federal election legislation to pass out of Congress since 2002 was the MOVE Act, a bill championed by Democrats to extend military voting rights. Overseas military voter turnout is abysmal, and the MOVE Act was a small step in the right direction by requiring states to get ballots to military voters on time. Still, Republicans have repeatedly criticized the Obama Administration’s Department of Justice for not implementing the MOVE Act aggressively enough against states which have sought waivers from its provisions.
Perhaps the Democrats are willing to fight about military ballots this time because of how they got burned in the Florida 2000 dispute. As I detail in my new book, “The Voting Wars,”; during the recounts of the ballots lawyers for Gore had been fighting against the counting of overseas ballots which did not have a postmark showing a foreign mailing before Election Day. When Republicans got wind of this, they accused Democrats of being anti-military. Democrats asked vice-presidential candidate Joe Lieberman to put the controversy to rest, but he said on the NBC news program “Meet the Press” that military ballots received by county canvassing boards should be given the benefit of the doubt.
A reader sends along the following thoughts:
While I firmly believe the Voter ID initiatives by several states are politically aimed at voter suppression among blacks and other minorities,I found myself being able to identify personally with the effects as explained by a Pennsylvania Congressman on the PBS News Hour the day the decision was handed down by the Commonwealth Judge. If the Congressman was correct in his explanation, one affected category of voter affected was military retirees. He explained that in Pa. all Picture IDs, Driver’s Licenses or Military IDs have to be current and reflect an expiration date. As military retiree, my military ID Card does not have an expiration date. It simply says Indefinite since I’m a retiree. It seems Pa. will not accept the Military ID Card of a retired serviceperson. My spouse’s military ID card does currently reflect an expiration date. Under current regulations however when she turns 75 she has to get a final ID Card that will reflect Indefinite just like mine. So if we were residents of Pa. and had become too old and infirm to drive, neither of us could use the military ID. True we would be able to get some sort of picture ID from the Motor Vehicle Registration offices but you get the gist. I’m sure the adverse impact of this law is worse for the minorities and I don’t know the total numbers of older military retirees that this affects but if it’s more than one it’s too damned many. I also wonder if other states have made similar decisions.
Is this correct under PA law? Anyone too infirm to drive would likely be entitled to an absentee ballot, which is one way to deal with this problem.
Must-Read Ned Foley Post on Husted Early Voting Decision, Military Voting Case, and Pa Voter ID Case
Ned Foley has a must-read post, Analyzing a “Voting Wars” Trifecta.
Here’s a taste on each of the three areas Ned covers.
On Husted’s uniform voting requirement: “But one can reasonably question whether Husted’s new directive upholds the standard of fair-minded, nonpartisan election administration that Husted has repeatedly professed that he wishes to follow. The uniformity that Husted has now required precludes any in-person voting on Saturdays and Sunday during the five-week period that Ohio’s statutory law provides for early voting. Is that a position that a nonpartisan Director of Elections, who is neither Republican nor Democrat, would take?”
On Democrats’ suit involving early voting period and the military: “In my judgment, the better position is that even though the Anderson/Burdick/Crawford test is not the same as the “rational basis” test, the State ought to be credited with whatever policy justifications can be offered to justify a non-exclusionary regulation of the voting process. Perhaps it is the fact that I served as Ohio’s State Solicitor for two years (while on leave from Ohio State’s law school), but I don’t think federal constitutional law should trip up a State just because the State used an arguably faulty legislative process for adopting a substantive rule that would be undeniably valid using a different legislative process. Instead, except when strict scrutiny properly applies, the respect that States as sovereign governments in our federalist system deserve requires (in my view) that they should be given the benefit of the doubt, so that their legislation is sustained under federal constitutional law whenever there is a reasonable policy argument available to sustain it.”
On yesterday’s decision on Pa’s voter id. challenge: “I think the court there was justified in refusing to invalidate the law in its entirety, just as the U.S. Supreme Court was justified in Crawford in refusing to invalidate Indiana’s voter ID law in its entirety. The simple point is that the photo ID requirement in both cases is not a burden for the many voters who already possess the required photo ID, and as to these voters there is no reason to prohibit election officials from applying the requirement to present that form of ID when they vote. To be sure, there may be no great necessity in the State’s insistence that these voters show a photo ID, rather than some other form (like a bank statement or utility bill), but given the absence of a burden as to these voters, the State should be permitted to have its way. After all, the obligation to show a photo ID might have some minimally deterrent effect against ineligible voting, and given no harm to voters who already have this form of ID, the balance tips in the State’s favor. (As a policy matter, I would prefer an alternative voter ID requirement, but suboptimal policy does not render a law unconstitutional.)”
AP: “It doesn’t take much to start a political spat in Ohio, where jockeying for every presidential vote is practically blood sport. The latest pits President Barack Obama’s campaign against groups representing military voters, an uncomfortable place for the commander in chief.”
The hearing on the preliminary injunction was today, and the judge said he would take some time before ruling.
I will have more to say on this dispute in a piece to appear soon.
Jocelyn Benson in the Detroit News: “When Michigan’s sons and daughters, husbands and wives put aside their safety to protect ours and serve in the military, it’s our responsibility to ensure that they can exercise their right to vote. Dealing with a deployment is stressful and nerve-wracking for any military family. I know — I am an army wife, and my husband is currently serving in Afghanistan. As we juggle all of the responsibilities of military life, the last thing our service members and their families need is an added struggle of trying to get their ballots in time to vote.”
UPDATE: Adam Fetcher, a spokesman for the Obama campaign, sent BuzzFeed the following statement:
“It is not correct that the Obama campaign and the Democratic Party have shifted the position taken in the case brought in Ohio to protect early voting for the vast majority of the state’s voters over the last three days before the general election.
We fully support accommodations for the military, such as the Uniformed Overseas and Citizens Absentee Voting Act (UOCAVA) and the Military and Overseas Voter Empowerment Act that President Obama signed into law. We also believe it is arbitrary for the state to open the polls for the weekend and Monday before the general election but to turn away most Ohio citizens who seek to cast their vote during this period. We support the right of the military and overseas voters to vote then, and we support the right of all other Ohio voters to take advantage of this same opportunity. In short, everyone should have equal opportunity to come in on election day – or during the days leading up to it at open polling locations – and cast a vote.
It is important to note that Ohio voters have successfully qualified a referendum on the ballot to stop the legislature from enacting a series of limitations on voting, including early voting for all citizens during the last three days before the general election. After the referendum was approved for the November ballot, the state’s legislative leadership claimed it would repeal this early voting restriction. But the General Assembly then proceeded to re-enact it – in direct disregard of the will of the voters.
As the case before the court makes entirely clear, this case is aimed at arbitrary exclusion. It is about restoring rights, not taking them away.”
BuzzFeed: “Ohio’s nonpartisan Legislative Service Commission finds that no states set the broad distinction that Ohio law does for early in-person voting — and only two states draw any legal distinction. Husted had it wrong.”
Here is a guest post from Prof. Diane Mazur:
Should We Have VIP Lanes for Military Voters?
The Obama campaign has challenged an Ohio law that extends the early voting period for members of the military, but not for civilians. The focus is on the three days right before Election Day. Under the new law, service members stationed in Ohio can continue to vote in person on Saturday, Sunday, and Monday before the election, but civilians can cast early votes only through Friday. When the Obama campaign asked a federal court to open the full early voting period to all voters, Mitt Romney accused the President of trying to undermine military voting rights.
Republicans said the lawsuit questioned whether it was constitutional to ever make accommodations for military voters. This characterization is inaccurate, and silly. There is a long history of accommodation for military and overseas citizens to vote by absentee ballot (for example, the federal Uniformed and Overseas Citizens Absentee Voting Act), and this is a settled understanding.
The Ohio law is the first, as far as I know, to grant extra voting privileges to service members voting in person, not by absentee ballot. The Obama campaign is not arguing that service members are never entitled to accommodation based on the unpredictable circumstances of their assignments, but only that it is arbitrary to hold “military-only” voting days when all voters are physically present and able to vote in person. If the election offices are going to be open, we should let everyone in the door. The Republican Party has offered no reason why Ohio needs “military-only” voting booths for in-person voting. The law does not address any specific burden or difficulty in voting, such as the rare service member who might be deployed without notice away from Ohio at the last minute, too late to register to vote by absentee. The law privileges all Ohio service members for no reason other than being in uniform.
If you follow the statements of the military groups and Republican representatives closely, you’ll see that they glide back and forth between references to absentee and in-person voting, realizing that their in-person arguments are without precedent and without justification. News reports ought to make clear that this is a giant leap beyond any other kind of military voting accommodation, and one that has nothing to do with the needs of the military.
It is all too easy to win arguments by accusing others of disrespecting the military. What really disrespects the military, however, is using service members as a wedge for political advantage and setting military and civilian communities against one another. This is, unfortunately, the sorry legacy of the 2000 presidential election. We have created a generation of service members who firmly believe the false myth that military people were disenfranchised in 2000 when they attempted to vote from overseas, and they remain suspicious today. The opposite was in fact true, that Florida elections officials were bullied into accepting ballots that were voted after the election, lest they be accused of being anti-military. We’re still paying for those reckless arguments today in terms of poorer civil-military relations. [For more, see A More Perfect Military: How the Constitution Can Make Our Military Stronger (Oxford University Press, 2010) (Chapter 11, “A Cautionary Tale About Military Voting”) and The Bullying of America (4 Election Law Journal 105 (2005)).]
The Ohio debate is more of the same all over again. It reminds me of the classic science fiction novel Starship Troopers, a story about a future society in which residents could qualify to become citizens, and to vote, only by serving in the military. The motivation behind the Ohio law granting “military only” voting days comes uncomfortably close to that vision. The idea that we should afford greater accommodations of convenience to service members because they are somehow more deserving of the right to vote than the rest of America does great damage to military professionalism. It’s important to protect the right to vote for all Americans, whether they serve in the military or not, and military professionals would agree.
Diane Mazur is a former Air Force officer and Professor of Law at the University of Florida
Must-listen Pam Fessler report for NPR.
David Firestone: “If Mr. Romney truly cared about the ‘fundamental right to vote,’ he would support it for everyone, even those who might not support him.”
BuzzFeed: “Obama campaign senior adviser David Axelrod gave voice to a careful walk-back by the Obama campaign over its challenge to an Ohio early voting law….In their initial filing, the Obama campaign argued that it was arbitrary for military voters to be able to submit ballots during the three-day period but not non-military voters. But now they appear to be shifting their defense of the lawsuit, telling BuzzFeed that what is arbitrary is not the difference between military voters and ordinary civilians, but that the Ohio voters could vote in the three-day period before the election in 2008 but cannot in 2012.”
If that’s the argument, what’s the relevance of the military voter period?
This item appears at Hot Air.
Mitt Romney Press | August 4, 2012Boston, MAUnited States
Mitt Romney today made the following statement on early voting privileges for military servicemen and women in Ohio:
“President Obama’s lawsuit claiming it is unconstitutional for Ohio to allow servicemen and women early voting privileges during the state’s early voting period is an outrage. The brave men and women of our military make tremendous sacrifices to protect and defend our freedoms, and we should do everything we can to protect their fundamental right to vote. I stand with the fifteen military groups that are defending the rights of military voters, and if I’m entrusted to be the commander-in-chief, I’ll work to protect the voting rights of our military, not undermine them.”
My earlier coverage is here and here. Note the relief sought in the Obama campaign complaint is all about getting early voting extended for all Ohio voters, and nothing about taking away early voting rights of military voters:
AP: “Fifteen military groups are opposing a federal lawsuit in Ohio brought by President Barack Obama’s campaign because they say it could threaten voter protections afforded to service members, such as the extended time they have to cast a ballot.”
I expect Republicans to use this suit to paint Obama as anti-military. In fact, I think the purpose of the suit is to extend the benefits in voting given to military voters in Ohio to all Ohio voters.
UPDATE: That didn’t take long.
SEE my more recent post on this issue, with a link to the complaint, here.