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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: internet voting
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.”
“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’?”
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””
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.
WaPo: “At least half a dozen countries with offensive cyber-capabilities are probing U.S. corporate and military computer systems, looking for data and a toehold should they one day want to disrupt or destroy the networks, according to the FBI’s former top cyber-sleuth.”
Pam Fessler blogs for NPR.
Andrew Gumbel has written this LA Times oped on Internet voting for the Academy Awards.
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.
Scroll down. Ron Rivest said at the conference that internet voting is like a “safe cigarette.”
Americans Elect Responds to My Oped, Does Not Dispute My Points on Disclosure, Transparency, or Lack of Democracy
Read the letter to the editor here. I raised three points: (1) the group has offered no reason to fail to disclose its donors; (2) its internet election plans are troubling because they are insecure; and (3) the group’s by-laws and draft rules allow the Board to overrule voters who participate in choosing a candidate.
The letter does not respond to any of these points directly. Instead it says: ” Hasen echoes concerns about the Americans Elect process, none of which are new. We would be happy to explain our process to him and we think he will conclude they are unfounded. But this expert on the status quo of election law in this country, instead of reaching out to us for a discussion of his concerns, chose to issue a public broadside.”
I’m somewhat bewildered by this “rebuttal,” as it does not appear to address the important points David Jefferson makes in his argument.Yes, the internet is widely used for many transactions. Jefferson’s well-argued point is that voting has different and more stringent requirements than other transactions, and you do not address this at all.Jefferson also points out that there is a routine acceptance of a small level of fraud in ecommerce, as a cost of business. Yet you didn’t reply to that either.Instead, you appear to have offered non sequiturs, such as the use of digital signatures in e-commerce.Jefferson was not arguing against digital signatures. The fact that digital signatures work indicates nothing about whether internet voting can work.Your most inexcusable argument, in my opinion, is that there has been no proof of fraud in internet voting trials. Surely you understand that, precisely because of the anonymity and other requirements involved in voting, fraud can be difficult to prove, perhaps impossible. This is one excellent reason that internet voting cannot be considered trustworthy, not a reason to consider it trustworthy.If you are concerned that paper-based processes are subject to fraud themselves, please work to improve them, not to subject us all to approaches that may well be convenient and “modern” but that are, for the reasons Dr. Jefferson clearly explains, simply not worthy of trust.
Doug Chapin blogs on David Jefferson’s If I can shop and bank online, why can’t I vote online?
In the course of writing The Voting Wars, and particularly the topic on voting technology, I encountered a number of readers who thought that Internet voting should be no harder to set up securely than online banking. My research told me differently, but there was no good, succinct source making this point. I am pleased therefore that David Jefferson has prepared the attached short paper making this point in a very convincing way. His work begins:
There is widespread pressure around the country today for the introduction of some form of Internet voting in public elections that would allow people to vote online, all electronically, from their own personal computers or mobile devices. Proponents argue that Internet voting would offer greater speed and convenience, particularly for overseas and military voters and, in fact, any voters allowed to vote that way.
However, computer and network security experts are virtually unanimous in pointing out that online voting is an exceedingly dangerous threat to the integrity of U.S. elections. There is no way with current technology to guarantee that the security, privacy, and transparency requirements for elections can all be met with any security technology in the foreseeable future. Anyone from a disaffected misfit individual to a national intelligence agency can remotely attack an online election, modifying or filtering ballots in ways that are undetectable and uncorrectable of just disrupting the election and creating havoc. There are a host of such attacks that can be used singly or in combination. In the cyber security world today almost all of the advantages are with attackers, and any of these attacks can result in the wrong persons being elected, or initiatives wrongly passed or rejected.
Nonetheless, the proponents point to the fact that millions of people regularly bank and shop online every day without apparent problems,. They note that an online voting transaction resembles an ecommerce transaction, at least superficially. You connect your browser to the appropriate site, authenticate yourself, make your choices with the mouse, click on a final confirmation button, and you are done! All of the potential attacks alluded above apply equally to shopping and banking services, so what is the difference? People ask, quite naturally, “If it is safe to do my banking and shopping online, why can’t I vote online?” This is a very fair question, and it deserves a careful, thorough answer because the reasons are not obvious. Unfortunately it requires substantial development to explain fully. But in brief, our answer is in two-parts:
1. It is not actually “safe” to conduct ecommerce transactions online. It is in fact very risky, moreso every day, and essentially all those risks apply equally to online voting transactions.
2. The technical security, privacy, and transparency requirements for voting are structurally different from, and much more stringent than, those for ecommerce transactions. Even if ecommerce transactions were safe, the security technology underpinning them would not suffice for voting. In particular, the security and privacy requirements for voting are unique and in tension in a way that has no analog in the ecommerce world.
Read the whole thing.
This item appears at the Internet Voting for All blog.