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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: election law “humor”
Trevor Potter Emerges from “Mazda Scandal Booth” to Help Colbert File Application for 501c4 Status with IRS
After you watch the video at Political Wire, you can imagine why he might.
On Colbert’s equal time obligations while supporting his sister against Sanford, see this Slate Explainer.
Here. My favorite: “She should give herself a break. I mean, who hasn’t made a mistake when adjudicating a landmark case?”
Attorneys representing Democrats and Republicans have issued a joint statement about the urgent need for the parties to come together to support a bipartisan package of election reform to be introduced in Congress. An excerpt:
The time for demagoguery of this issue is over. Our democracy is too precious to trust to a broken and partisan election system. No longer should party officials preside over federal elections. Our system should be run by trained professionals with allegiance to the fairness of the electoral process and not to any party or candidate.
The time has come for Republicans to admit that the problem of voter fraud, while real, has been exaggerated for partisan gain. Voter id laws will do little to stop real fraud and constraints on absentee balloting will be the first step to address real problems of fraud.
The time has come for Democrats to admit that not all Republican concerns about election integrity amount to an effort at voter suppression. Noncitizen voting, for example, is a small problem, but a real one.
A national voter identification program, coupled with voluntary universal voter registration conducted by the federal government can solve problems with voter fraud and insure the right of all eligible Americans to vote. The system of state sovereignty and federalism must be protected, but it must give way only to the extent necessary to assure that all eligible voters, but only eligible voters will cast a vote which can be counted.
In the wake of mischief on long lines at the Supreme Court in the gay marriage cases, including people such as Rob Reiner paying up to $6,000 to other people to stand in line to hold a place for Supreme Court oral argument, and reports that lawyers on the Supreme Court bar line not only paid line standers but brought their friends to cut in line in front of others who had waited all night for a seat at the oral argument in the DOMA case, the following press release was issued:
Chief Justice Roberts declared “Enough is Enough” and announced two new policies for high profile cases at the Supreme Court.
1. For members of the Supreme Court bar, the Court is adopting Rule 49. Rule 49 is the new “no cutsies” rule. Cuts are not allowed. Anyone who cuts in line on the Supreme Court bar line will be sent to the Chief Justice’s office by the Supreme Court police for a stern talking-to. Parents of line cutters may be called.
2. For others coming to line, under new Rule 50 Supreme Court police will distribute wristbands the evening before oral argument generally following procedures for the distribution of Bruce Springsteen floor admission.. The most junior Justice will choose a number by lot for the start of the lottery. The first 50 people beginning with the chosen number will be allowed into the new “pit area” for Supreme Court oral arguments. “I may be the boss of the Supreme Court, but sometimes we all have to learn something from ‘The Boss,’” the Chief Justice said.
The Court does not plan on changing its policy barring the use of cameras at argument.
This item appears on the CLC Blog.
Via the Washington Post.
How “Just Plain Dick” and “I want you to shut the f#ck up” got superimposed on the C-SPAN “fiscal cliff” debate feed.
As I suspected would happen…
My Dearest Email List,
Last month, my friend Ham Rove passed away in a very unsuspicious fashion. On the same day, Colbert Super PAC’s money, $773,704.83, was squirreled away in a fashion that was extremely suspicious, but entirely legal. I thought that’s the last I’d hear from Ham Rove, particularly because a dog ate him.
But Ham Rove had plans beyond his death, and I was recently surprised to find myself on the board of the Ham Rove Memorial Foundation. I was equally surprised to learn we received a $773,704.83 donation. Where did that very specific amount of money come from? There’s simply no way to know.
Tonight, I am honored to announce First and Final Annual Charitable Donations by the Ham Rove Memorial Fund.
Hurricane Sandy was much like Ham Rove: Cold, cruel, salty, and the cause of untold devastation. In his honor, Donors Choose, Team Rubicon, and Habitat For Humanity will each receive $125,000 to assist with their Sandy relief efforts.
We’ll also be donating $125,000 to the Yellow Ribbon Fund, which serves wounded soldiers and their families. My attempts to get a matching donation to the Blue Ribbon Fund, which serves me frosty cans of PBR, were not successful.
The remaining money will be split between two pro-transparency groups who fight against the corrupting influence of outside money in politics. Luckily, they were both fine with the corrupting influence of outside money in their offices. As per his wishes, the Center for Responsive Politics has officially renamed their meeting space “The Colbert Super Pac Memorial Conference Room.” And the Campaign Legal Center will, from here on out, be home to “The Ham Rove Memorial Conference Room.”
It is the highest compliment that I can pay when I say I miss Ham Rove almost as much as I miss that money. I wish he could have stayed with us a little longer. Because now I have to plan a whole new Christmas dinner.
Accidental Chairman, The Ham Rove Memorial Fund
Paid for by Americans for a Better Tomorrow, Tomorrow
Not authorized by any candidate or candidate’s committee.
|The Colbert Report||Mon – Thurs 11:30pm / 10:30c|
|Colbert Super PAC SHH! – Secret Second 501c4 – Trevor Potter|
The question not answered by this piece is what he’s doing with the money he raised. Colbert writes on the Super PAC’s website: “Due to Ham Rove’s timely passing, I am announcing that Colbert Super PAC is shutting down effective immediately. During this time of mourning, we ask that you respect our privacy, and more importantly, the privacy of our money. It wishes to stay out of the public eye, so please don’t go trying to find it. Rest assured, you won’t. We have a really good lawyer. “
Watch. [corrected link]
Here. Talk of free cheeseburgers and an open bar.
For non-Yiddish speakers, a pushka is generally a charity box, but in this context I believe it refers to a 501c4.
JOEL K. GOLDSTEIN, a law professor at St. Louis University, is a leading authority on the United States vice presidency. People seem to respect him anyway. …
Another inclination I had when I heard about Mr. Goldstein (and I’m not proud of this) was to be a wiseguy.
“So, what does a vice-presidential scholar do all day?” I asked when I reached him at his office, no doubt cluttered with the letters of Garret Augustus Hobart. “Do you wait around in case something happens to a presidential scholar?
“Do you consider yourself a heartbeat away from presidential scholarship?
“Do presidential scholars send you to the funerals of foreign presidential scholars?”
The Daily Show takes on President Obama giving $5,000 to his campaign.
|The Daily Show with Jon Stewart||Mon – Thurs 11p / 10c|
|President Obama’s Self-Donation|
Of course, under Buckley v. Valeo the President could spend unlimited sums of his own money on his campaign.
Despite this headline on MSN New Zealand, it does not appear, alas, that election law is literally an ass.
This item appears at the Borowitz Report.
“Yes We Meow.”
|The Daily Show with Jon Stewart||Mon – Thurs 11p / 10c|
|Democalypse 2012 – Pander Express Edition – Campaigns Pander to Voters|
Bizarre: “Something exceedingly strange is happening at the John Edwards trial: all four alternate jurors dressed in red shirts Friday. They each wore bright yellow the day before. Coincidence? Few here think so. he demeanor of the alternate jurors and their behavior has become the talk of the courthouse. The alternates enter the courtroom each day giggling among themselves. One of the alternates, an attractive young woman, has been spotted smiling at Edwards and flipping her hair in what seems to some to be a flirtatious manner. On Friday, she wore a revealing red top with a single strap and an exposed right shoulder.”
Meanwhile Andy Borowitz weighs in on Edwards’ missed career opportunity.
Release: “Mo Rocca, a CBS News correspondent and former correspondent for “The Daily Show With Jon Stewart,” recently interviewed Indiana University Robert H. McKinney School of Law professor Michael Jude Pitts during filming for the documentary ‘Electoral Dysfunction.’”
ProPublica: “With 300-plus super PACs and counting, it would be easy to miss CREEP. But last Thursday, a new super PAC ingeniously named the Committee for the Re-Election of the President registered with the Federal Election Commission. The committee is based out of a post office box at the Watergate Complex—an homage, of course, to the other Committee for the Re-Election of the President, the fundraising committee for President Richard Nixon that became embroiled in the Watergate scandal.”
More about 501c4s and super pacs on the rest of the episode.
Just two years ago, this Court held that the First Amendment prevents the government from enacting laws limiting corporate spending in elections. We stated that the identity of the corporate speaker does not matter, that independent spending can neither corrupt the election process nor cause the public to lose confidence in the fairness of elections. We also held that the government’s “antidistortion” interest in preventing the wealthy from drowning out the voice of others is an impermissible end for government regulation. We made a huge mistake.
Since 2010, election spending has increased greatly, through the emergence of “Super PACs” and misuse of the 501(c)(4) organizational form reserved in the Internal Revenue Code for “social welfare” organizations. This Court’s opinion in Citizens United, coupled by developments in the lower courts and the Federal Election Commission, means that a large percentage of the money spent in elections will likely be unreported, and it has become child’s play for individuals, corporations (and potentially–and illegally–even foreign individuals and corporations) to hide their identities.
“Enough is enough.” Cf. WRTL II (opinions of Roberts, C.J.) The government has a strong interest in the integrity of its elections and the prevention of corruption. Recent experience shows that independent spending can indeed corrupt and Congress (and states) may rightly conclude that the inevitable conflict of interest stemming from obscenely large amounts of money in our elections justifies reasonable limits on campaign contributions and spending. As we explain below, Citizens United and that portion of Buckley v. Valeo barring spending limits in elections are hereby overruled, leaving open the possibility for the government to demonstrate that narrowly tailored campaign contribution and spending limits which allow for robust political debate from multiple diverse voices are consistent with the First Amendment.
Justice Scalia, for himself, and Chief Justice Roberts, Justice Alito, and Justice Thomas issued a brief dissent, which begins:
Are you kidding me?
Smart politics. And nice death hug with Newt.
WaPo:”With two presidents in the family, [Jeb Bush] said, you got to deal with a lot of bossiness. “If I say, ‘Who put you in charge?’, Dad says, ‘The American people.’ And George says, ‘The Supreme Court, five to four.’”
It may not be clear even to Colbert. But if Colbert keeps this going for a while, here are some things he could do without running afoul of the FEC’s porous coordination rules:
1. He could fundraise for the Super PAC, so long as he does not ask for more than $5,000.
2. He could take footage from the Super PAC’s ads, and use them in his own ads.
3. If we are far enough from the election, he might even be able to appear in a Super PACs ads.
In other words, Colbert can explain how he can coordinate without illegally coordinating. Theater of the absurd indeed.
CNN reports that Stephen Colbert said “I’m proud to announce I plan to form an exploratory committee to lay the groundwork for my candidacy in the United States of South Carolina” and that because of legal problems with a candidate controlling a Super PAC, he is turning over control to Jon Stewart.
I had wrongly predicted he would not want to give up control of the Super PAC and would instead endorse Buddy Roemer.
Since it is too late for Colbert to get on the ballot in South Carolina and the state prohibits write-in votes, it is not clear what a candidacy means here. Nor is it clair what it means to be a candidate “in the United States of South Carolina.”
Perhaps after getting no (legal) votes in South Carolina he will suspend his candidacy and then retake control of the super PAC.
I’m sure all these machinations will keep Colbert’s lawyers plenty busy, and all of us entertained.