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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: recounts
Former Mayor Virginia Madueño’s supporters said the Stanislaus County election office shouldn’t charge them for staff salaries for the week before ballots were recounted in the November mayoral race.
Madueño is contesting an itemized bill showing that Registrar of Voters Lee Lundrigan charged almost $4,000 for her time spent on the December recount. A Madueño supporter who asked for the recount was billed $10,217 by Lundrigan’s office for an effort that lasted 5½ hours before it was called off.
In addition to a required $2,400 deposit to start the Dec. 10 recount, county elections sent a bill six weeks later seeking payment of an extra $7,817, based on staff time to prepare for the tally.
Josh Douglas has posted this draft on SSRN (forthcoming George Washington Law Review). Here is the abstract:
The Article provides the first comprehensive look at election law cases after the Supreme Court’s jurisprudential shift for pleading in Twombly and Iqbal. In these cases, the Supreme Court declared that plaintiffs must meet a “factual plausibility” test in their complaints, providing enough factual specificity to explain the basis for their suit. Courts in election cases have tried to follow this formulation. But applying Twombly and Iqbal to election law is incongruent with the main features of election litigation, leading to an awkward and sloppy analysis. There is usually little need to assess whether the plaintiff presented detailed factual allegations in a complaint when everyone usually agrees on how an election practice operates and the real question is whether the election regulation violates some law. Instead, a court deciding a motion to dismiss in an election case should focus on the other aspect of Rule 12(b)(6): legal sufficiency. To do so, this article proposes a pleading standard that would supplement factual plausibility, which I term “legal plausibility.” In addition to requiring sufficient factual allegations – which are often not the crux of an election dispute, at least at the complaint stage – pleading rules should force election law plaintiffs to make a plausible showing that the challenged practice is legally flawed. Legal plausibility entails three parts: plaintiffs should identify the precise election practice being challenged, explain with particularity how the law impacts that plaintiff, and apply the elements of the cause of action to the manner in which the election regulation operates. This standard will be particularly helpful for litigants and courts when the case at hand exhibits the dual features of timeliness concerns and a lack of viable post-election remedies – which encompasses a lot of election litigation. Although I focus on election cases, legal plausibility could apply to other areas that are similar to election law. Legal plausibility shifts the way in which courts analyze motions to dismiss. It helps courts streamline election litigation by weeding out those lawsuits that have no legal merit, allowing courts to spend more time and resources on the salient and difficult cases that require quick resolution before an election.
News from Ohio: “Josh O’Farrell, the Democratic challenger for the Ohio House of Representatives 98th District, filed a lawsuit to contest the election with the state Supreme Court on Monday. The complaint involves several provisional and absentee ballots that were rejected by the Tuscarawas County Board of Elections, and were not included when the board certified the election Dec. 14. O’Farrell lost to Republican incumbent Al Landis by eight votes, with Landis leading 23,393 votes to 23,385, in both Tuscarawas and Holmes counties.”
Moritz has a primer on how election contests work in Ohio.
You can read the contest filed in the Supreme Court of Ohio at this link.
FairVote: “There were no statewide election recounts in 2012. This is particularly noteworthy, considering the fact 419 statewide elections took place this year. In this post-Florida 2000 political landscape, the specter of recounts continues to loom large and you will even read thoughtful people suggesting that the possibility of a recount is enough to oppose a having one-person, one-vote elections for president by national popular vote. However, when we step back and take a close look at the numbers, it becomes clear that chance of actually having to perform a recount is relatively remote. Indeed, from 2000 to 2012, 99.457% of statewide elections have been successfully held without recounts – and recounts take place consistently show minuscule changes in victory margin.”
AP: ‘Alleging widespread voting machine errors and other Election Day problems, Republican Sandy Welch requested a manual vote recount Monday in the race she narrowly lost for Montana schools superintendent.”
Jim Bopp is leading the recount effort.
Elections expert Rob Richie said Monday that Welch will be fighting long odds in her bid to become Montana’s next superintendent of public instruction.
Richie, with the Maryland-based election research group FairVote, said his group analyzed 18 statewide recounts in the United States over the past decade. Those recounts on average shifted the vote less than 0.03 percent, or by just a few hundred votes, he said.
By contrast, Welch lost by 0.48 percent. That’s more than 17 times the average shift found by FairVote.
Richie said “it would be extraordinarily unlikely” for a recount to change the outcome.
CNN: “- In the final race deemed too close to call, Republican David Rouzer conceded Wednesday after a recount in the race for North Carolina’s 7th Congressional District showed incumbent Rep. Mike McIntyre won by a razor-thin margin.:
The last unresolved House race may soon be resolved.
Roll Call reports. This was not a Romney-like gracious concession speech: “I want to congratulate my opponent, Patrick Murphy, as the new Congressman from the 18th Congressional District. I pray he will serve his constituents with honor and integrity, and put the interests of our nation before his own.”
AP: “The trailing Democratic Party candidate for lieutenant governor said Monday she won’t seek a statewide recount, admitting that a new tally was unlikely to make up the nearly 6,900 votes she needs. And it would cost North Carolina’s 100 counties at least $1.5 million to recount.”
News from Minnesota: “The closest election in Minnesota this year was the House District 8B contest between incumbent Rep. Mary Franson, R-Alexandria, and Democratic challenger Bob Cunniff. Franson won by a single vote. But election officials in Douglas County discovered that poll workers mistakenly handed dozens of 8B ballots to residents of a neighboring House district. The errors occured in at least three polling places that had shared precincts.”
Palm Beach Post report. I was thinking the same thing.
Palm Beach Post: “The St. Lucie County canvassing board has missed a noon deadline to file election results to the Division of Elections, prompting campaign officials for Patrick Murphy to declare the political newcomer the winner in the race for congressional District 18 race.”
This will be one of those instances in which Republicans call for counting every vote and Democrats call for sticking to the rules as written.
See also St. Lucie Voting System Noted for Errors.
The latest in the Allen West dispute.
The Hill: “The legal battle surrounding the results of Rep. Allen West’s (R-Fla.) reelection bid is likely not over yet, as both he and Democrat Patrick Murphy have indicated a willingness to move forward with litigation, regardless of the official results. A judge has dismissed West’s case calling for a full recount of ballots from all eight days of early voting in St. Lucie County, a major part of Florida’s 18th District, eliminating his final legal option before the county’s vote canvassing board meets this afternoon to decide whether to engage in a full recount.”
Provisional ballots greatly exceed margin between candidates.
Fascinating tidbit from the NYT inside report of the campaigns:
Even as the networks declared Mr. Obama the winner, Mr. Romney, who had earlier told reporters he had written only a victory speech, paused before the walk downstairs from his hotel room in Boston. It was 11:30 p.m., and Romney field teams in Ohio, Virginia and Florida called in, saying the race was too close for the candidate to give up. At least four planes were ready to go, and aides had bags packed for recount battles in narrowly divided states. Bob White, a close Romney friend and adviser, was prepared to tell the waiting crowd that Mr. Romney would not yet concede.
But then, Mr. Romney quietly decided it was over. “It’s not going to happen,” he said.
Could be, though it is too early to tell. What else may go into overtime?
By Lawrence Norden
With the polls deadlocked just a few days before Election Day, state recount laws once again take on national significance. It is no exaggeration to say that these laws could determine who is elected president in 2012. This issue brief takes a look at some of the most critical provisions of the recount laws in the 10 states identified as most likely to be “tipping point” states that could provide the decisive electoral vote in a close presidential contest (Colorado, Florida, Iowa, New Hampshire, Nevada, North Carolina, Pennsylvania, Ohio, Virginia, and Wisconsin). We also look at factors related to each state that could increase the likelihood of bitter recount contests.
Pam Fessler reports for NPR.
Justin Levitt has written this guest post at Moritz.
He’s also written They’re aliiiiive! (Really. They’re alive.) for Summary Judgments.
Josh Douglas: “This post highlights a chart containing information about who would decide a post-election challenge in each of the fifty states, broken down by type of election. To access the chart, click here. For a summary and further analysis, read on.”
Timely reading from Ned Foley.
He’s also written a smart piece on why an election going into “extra innings” does not equal a crisis.
As the prospects of a close Presidential election this fall show no signs of abating, it is worth reflecting on what might – and should – happen after Election Day in the event of an election that is too-close-to-call. My colleague Ned Foley has already addressedone aspect of this “what if” scenario, namely, the possibility that a swing state like Ohio, because it has a large number of provisional ballots or late-arriving absentee ballots, may not be able to declare a winner until some ten days after Election Day. But beyond that reality of the regular election processes, what if alleged errors or mistakes in the casting or counting of ballots lead to an election contest over the outcome in a particular state? How well prepared are states to handle post-election litigation on a very compressed timetable, and under the glare of the national spotlight?
This is an issue that the American Law Institute currently has under consideration. The ultimate goal of this multi-year ALI project on election law is to promulgate principles that individual states could adopt to assist them in fairly, reliably, and expeditiously resolving post-election disputes. But those principles are still in their formative stages, and the ALI has not yet taken any official position on what principles to recommend. Nevertheless, the work to date of the ALI project may offer some guidance in the event of an election contest this year.
The Daily Beast reports.
What would a 2012 presidential election overtime look like? I argue in the last chapter of The Voting Wars that it would be much worse than Florida 2000.
Ninth Circuit Holds that Individual Aggrieved by Local Election Recount Procedures Has No Private Right of Action Under HAVA section 301
See the opinion in Crowley v. State of Nevada.
“Prosser’s recount got ample funding; Lawyer who worked on justice’s behalf has case pending before court”
The Milwaukee Journal-Sentinel reports.
In all, he raised $272,887 for his recount efforts. The fundraising was conducted in April and May.
More than $75,000 went to the Troupis Law Office, which is headed by Jim Troupis and has a major First Amendment case before the court Prosser sits on.
Three legal experts said judges and justices cannot hear cases argued by attorneys who have recently done work for them. Prosser plans to remain on the case regardless.
As part of my work on the Voting Wars, I just had the pleasure of reading Jay Weiner’s book on the Coleman-Franken contest. It reads like a turn-pager of a novel, and is full of inside information on the key players involved in the Minnesota recount. It gives you a flavor of the lawyering behind the scenes, though Weiner’s account seems to rely more on the lawyers from the Democratic side than the Republican side for his account of what happened.
I also very strongly recommend Ned Foley’s ELJ pieces on Minnesota, the one Dan Tokaji just flagged, and Part II, which will be out in the next issue of the journal. Ned’s work is a nice complement to Jay’s. Ned gives the lawyers and scholars a legal history of the conflict, while Jay tells the human story behind the battle.
Read them all!