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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
Remedies: Examples & Explanations (Aspen Publishers, 3d ed. 2012)
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)
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)
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)
Excess of Democracy (Derek Muller)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Mischiefs of Faction
The Monkey Cage
More Soft Money Hard Law (Bob Bauer
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 Commentaries and Op-Eds
The Supreme Court Gives States New Weapons in the Voting Wars, Daily Beast, June 17, 2013
It's About the Disclosure, Stupid: The larger failing behind the terrible IRS treatment of Tea Party groups, Slate, May 14, 2013
Same-Sex Marriage: Court on the Couch, Reuters Opinion, Mar. 26, 2013
The Voting Wars Within: Is the Justice Department Too Biased to Enforce the Voting Rights Act?, Slate, Mar. 18, 2013
Who Controls Voting Rights?, Reuters Opinion, Feb. 26, 2013
After Scalia: Don’t Give Up on Campaign Finance Reform, However Hopeless It Seems Now, Slate, Feb. 21, 2013
If the Court Strikes Down Section 5 of the Voting Rights Act, Reuters Opinion, Jan. 30, 2013
Democrats, Don’t Freak Out! Why Fear that Republicans Will Gerrymander the Electoral College are Overblown, Slate, Jan. 25, 2013
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)
Read more opeds from 2006-2009, and these from 2010-2011.
Forthcoming Publications, Recent Articles, and Working Papers
Political Dysfunction and Constitutional Change, 86 Drake Law Review (forthcoming 2013) (symposium) (draft available)
Is “Dependence Corruption” Distinct from a Political Equality Argument for Campaign Finance Reform? A Reply to Professor Lessig, 12 Election Law Journal (forthcoming 2013)
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?, 74 Montana Law Review 53 (2013)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review 205 (2013)
Fixing Washington, 126 Harvard Law Review 550 (2012)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (2012)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, 27 Journal of Law and Politics 557 (2012)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review 191 (2012)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, 61 Emory Law Journal 779 (2012)
Teaching Bush v. Gore as History, 56 St. Louis University Law Review 665 (2012) (symposium on teaching election law)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, 10 Election Law Journal 325 (2011)
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)
Category Archives: campaigns
Detroit Free Press: “Former Detroit Medical Center CEO Mike Duggan is not eligible to run for mayor of Detroit because he did not meet city residency requirements, the Michigan Court of Appeals ruled today.”
I cannot find the dissenting opinion posted anywhere yet. An appeal to the Michigan Supreme Court is still possible.
Adjusting for inflation, the figure is a mere 224% increase.
Rick Hasen recently published an interesting article on the legal remedies for malicious lying in politics. Richard L. Hasen, A Constitutional Right to Lie in Campaigns and Elections, 74 Mont. L. Rev. 53 (Winter 2013) . He fears that “false and misleading speech may be increasing” in a “highly charged partisan atmosphere, in which each side cannot agree upon the basic facts,” and that the media, including the burgeoning fact-checking corps, “are not able to meaningfully curb candidates’ lies and distortions.” Id. at 54. 55. Legal responses seem largely beyond reach, particularly after the Supreme Court’s decision in Alvarez v. United States, 132 S. Ct. 2537 (2012), which Hasen reads to indicate that “broad laws targeting false speech stand little chance of being upheld, regardless of topic.” Id. at 69.
Among several issues of note, one stands out as illustrating the complications besetting the current federal campaign finance structure. If there is more lying in politics, we might expect this to correlate with an increase in the number and activities of Super PACs. The link that comes most immediately to mind is the connection many draw between Super PAC advertising and hyperbolic campaign advertising. This may not be the only connection or even the key one. Federal candidates contending with proliferating false speech may also need Super PACs for their defense, for want under the regulatory regime of an alternative source of funds to deflect or manage maliciously false charges.
The latest from New Jersey.
This could be interesting.
“Republicans Fuming Over Chris Christie’s Senate Decision; The New Jersey governor’s decision to hold the Senate race in October 2013 means it will be difficult for the GOP to contest the seat.”
Because of two apparently conflicting New Jersey statues, Gov. Christie may make a political decision about when to schedule a special election, a decision which could result in litigation over the conflicting statutes. The NYT explains the options:
The option that is being pushed by many in Mr. Christie’s own party would be to name a Republican to hold the seat and then delay an election on a replacement until 2014. This would give his national party an unexpected gift: a reliable vote in the Senate — for a year and a half, at least — from a state that has not elected a Republican to the upper house in 41 years. But it would also open Mr. Christie up to allegations of sidestepping the electoral process.
The alternative, lawyers in both parties said, would be for Mr. Christie to set a primary election as early as August, which would mean a special election in October. This would leave Democrats in a stronger position to win the seat. Mr. Booker, in particular, benefits from a high national profile and strong fund-raising, though he would be quite likely to face a primary challenge. But it would also open Mr. Christie to accusations that he was wasting some $24 million in taxpayer money by holding those two extra elections ahead of the regular November balloting for self-interested political reasons.
He also risks alienating Republican donors, whom he needs to woo. Mr. Lautenberg’s death came a few days before Mr. Christie is to attend a meeting of some of the biggest Republican fund-raisers, some of whom believe that Mr. Christie’s embrace of President Obama after the hurricane damaged their party’s nominee, Mitt Romney….
Some Democrats said they believed Mr. Christie could see his support among Democrats and independents erode if he appointed a Republican to hold the seat beyond November. “I seriously doubt he would want to have to deal with a lawsuit in his own election year, especially a lawsuit that he might lose,” said one senior Democratic official who requested anonymity in order to not be seen as antagonizing the governor.
MORE from Political Wire on Democrats’ litigation threat.
Maryland’s second-highest court upheld on Monday political consultant Julius Henson’s conspiracy conviction in a robocall scheme that prosecutors said was designed to suppress black votes.
The Maryland Court of Special Appeals reaffirmed the conviction, writing that the case “presents us with a sad tale.” A judge wrote that Henson “and his collaborators callously attempted to manipulate members of the electorate.”
Center for Media and Public Affairs at George Mason University:
A leading media fact-checking organization rates Republicans as less trustworthy than Democrats, according to a new study by the Center for Media and Public Affairs (CMPA) at George Mason University. The study finds that PolitiFact.com has rated Republican claims as false three times as often as Democratic claims during President Obama’s second term. Republicans continue to get worse marks in recent weeks, despite controversies over Obama administration statements on Benghazi, the IRS and the AP.
Of course, such a study assumes that organizations such as Politifact fairly choose statements to analyze, and analyze those statements fairly. Both of these points are contested by some Republicans, as I canvass in my recent article, A Constitutional Right to Lie in Campaigns and Elections?
UPDATE: John Sides makes similar points.
Maybe it went like this: “Oh Lord, we beseech thee to bring forth a mighty super PAC from the heavens, to rain down negative advertising upon all of my opponents. Oh let the (c)(4)s emerge from the depths of darkness, attacking my opponent with the ferocity of a wild beast lurching forth momentarily and retreating into the darkness. And let us say, amen.”
WaPo: “Months after the FBI began probing allegations against Sen. Robert Menendez (D-N.J.), investigators are now looking at whether someone set out to smear him while he was running for re-election last year and then ascending to his new post as chairman of the Senate Foreign Relations Committee, according to four people briefed on the inquiry.”
Los Angeles Lawyer on legal issues surrounding the use of songs in political campaigns.
Should Ohio judicial elections go entirely nonpartisan on the ballot? Should Ohio switch to some nonpartisan process to help governors fill judicial vacancies, and should those appointments require state Senate confirmation?
In a Cleveland appearance Thursday before the Ohio State Bar Association, Chief Justice Maureen O’Connor put eight topics on the table for discussion that she hopes will lead to judicial election reform by year’s end.
The plan skirts the political hot-potato of replacing elections with a form of merit appointment process.
The announcement on May 1 by the Republican National Committee that it had awarded of a multi-million dollar contract for data management and collection services to Liberty Works, a firm run by Richard Boyce, an associate of Karl Rove, has driven a new wedge between establishment and conservative forces battling for control of the party.
The extensive involvement of Rove, not only with Liberty Works, but with all aspects of Republican efforts to build a technologically advanced, integrated voter list has provoked new charges that Rove is acquiring unprecedented control over the Republican electioneering machine: over the aggregation of tactically valuable data and of sharing it; over fundraising; over candidate selection; over voter mobilization; and finally over issue prioritization.
“Meet the Most Important Ted Cruz Birther: Ted Cruz; Ted Cruz is eligible to be president under almost any reading of the Constitution—except his own”
“Marshall facing prison time; Judge sentences [North Vernon] man in vote fraud case to 18 months with 9 suspended”
News making waves in Indiana: “Michael R. Marshall, 60, of North Vernon, a veteran Democratic Party volunteer in Jennings County, was sentenced on Wednesday to 18 months in prison, with nine months suspended, on three counts of voter fraud. Marshall made an agreement last January to plead guilty, but sought to have the charges reduced from Class D felony to Class A misdemeanor counts at the sentencing hearing.Jennings County Circuit Court Judge Jon Webster levied the sentence following a two-hour hearing, discussing Marshall’s executing three absentee ballot applications during the 2010 general election.“
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.
“DIRTY TRICKS: Mysterious Conservative Group Sending Out Push Polls In South Carolina Special Election”
- “What would you think of Elizabeth Colbert Busch if I told you she had had an abortion?”
- “What would you think of Elizabeth Colbert Busch if I told you a judge held her in contempt of court at her divorce proceedings?
- “What would you think of Elizabeth Colbert Busch if she had done jail time?”
- “What would you think of Elizabeth Colbert Busch if I told you she was caught running up a charge account bill?”
- “What would you think of Elizabeth Colbert Busch if she supported the failed stimulus plan?”
- “What would you think of Elizabeth Colbert Busch if I told you unions contributed to her campaign?”
If you are thinking we should just ban false campaign speech, read this.
While awaiting an internal audit headed by a top Koch Industries executive, the brothers have rejected any notion of stepping back from electoral politics. Strikingly, after years of nurturing a political network and donor base largely independent from traditional Republican circles, the Kochs are planning to substantially increase their involvement in party affairs.
They have not yet decided whether to intervene in Republican primaries, people involved in the discussions say. But the brothers want their network to play a bigger role in cultivating and promoting Republican candidates who hew to their vision of conservatism, emphasizing smaller government and deregulation more than immigration and social issues. They are also seeking closer control over groups within their network, purging or downgrading those that did not deliver last year and expanding financing for those that performed well.
What Do You Get When Two Candidates from the Same Party Who are Virtually Indistinguishable Run in Round Two of a Nonpartisan Primary?
Exactly what you’d expect—trumped up and exaggerated ethics charges.
Politico: “The immigration proposal pending in Congress would transform the nation’s political landscape for a generation or more — pumping as many as 11 million new Hispanic voters into the electorate a decade from now in ways that, if current trends hold, would produce an electoral bonanza for Democrats and cripple Republican prospects in many states they now win easily.”
Nate Silver: “Politico attempting to use statistics is like Taco Bell attempting to cook French food.” MORE: “POLITICO ‘analysis’: no way to know how many illegal immigrants would get citizenship and vote, so let’s assume 100%.”
NYT: “Three years ago, Charles and David Koch, the billionaire industrialists and supporters of libertarian causes, held a seminar of like-minded, wealthy political donors at the St. Regis Resort in Aspen, Colo. They laid out a three-pronged, 10-year strategy to shift the country toward a smaller government with less regulation and taxes. Three years ago, Charles and David Koch, the billionaire industrialists and supporters of libertarian causes, held a seminar of like-minded, wealthy political donors at the St. Regis Resort in Aspen, Colo. They laid out a three-pronged, 10-year strategy to shift the country toward a smaller government with less regulation and taxes. Other than financing a few fringe libertarian publications, the Kochs have mostly avoided media investments. Now, Koch Industries, the sprawling private company of which Charles G. Koch serves as chairman and chief executive, is exploring a bid to buy the Tribune Company’s eight regional newspapers, including The Los Angeles Times, The Chicago Tribune, The Baltimore Sun, The Orlando Sentinel and The Hartford Courant.”
WaPo on new documentary.
i missed this extensive Tom Edsall piece from last week.
WaPo on ProgressKy. Hard to imagine Senator McConnell having better luck.
The Federal Bureau of Investigation said it was looking into allegations by Senator Mitch McConnell of Kentucky that political opponents bugged his campaign headquarters.
Mr. McConnell, the Republican leader in the Senate, blamed the “political left” for an anonymous recording of a meeting at his campaign headquarters that appeared on the Web site of Mother Jones, a liberal magazine, on Tuesday morning. The recording captures Mr. McConnell and his aides outlining possible attacks on potential opponents, especially the actress Ashley Judd.
Organizing for Action, President Obama’s nonprofit advocacy organization, has sought to be nimble as it ramps up a national effort to back his agenda on gun control measures and immigration reform.
But it appears the group didn’t move swiftly enough to protect its presence online.
An arbitrator has denied the organization’s effort to obtain the domain name organizingforaction.net, registered by a quick-moving computer technician in Castle Rock, Colo., on Jan. 18, when the news broke that Obama’s former advisors were launching the group.
Derek Bovard proceeded to configure the site so all the hits were directed to the website for the National Rifle Assn. It was one of three domain names for Organizing for Action that the group failed to register before it launched.
“The anatomy of a misleading fundraising email; Democrats’ pitch rife with curious, questionable statements”
There may never be a time to read this story from CPI. Act now before it’s too late!
Milwaukee Journal-Sentinel: “Milwaukee County prosecutors Thursday filed voter fraud charges against 10 people, including two accused of double voting in 2012 elections and two felons ineligible to vote.”
“To Mark Watergate’s 40th Anniversary, Common Cause to Convene Two -Day Conference at National Press Club; Watergate figures, policy experts, reformers, journalists to e xplore lessons learned and their resonance today”
Steven Andre has posted this draft on BE Press (Administrative Law Review). Here is the abstract:
The constitutional issue presented by government partisanship in elections is becoming increasingly significant for review by the U.S. Supreme Court. The high Court’s decisions in Arizona Free Enterprise Club, Citizens United v. FEC and Pleasant Grove City v. Summum shed significant light on how the high Court would handle the government campaigning question if it should ever accept review on the issue. This article reviews lower court treatment of the problem and describes the U.S. Supreme Court’s analysis of election and First Amendment concerns and applies that analysis to the question of partisan government expenditures during election contests.
Nonprofit Law Prof Blog: “When does improper campaign intervention become a crime? At the least, there has to be an instance of campaign intervention. But is that all? According to a federal information to which the defendant is set to plead guilty, the answer is ‘yes’ surprisingly. A short but interesting story in yesterday’s Wapo describes a federal information in which the crime is hard to find.”