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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: The Voting Wars
“Committee on House Administration Democrats Introduce Bill to Reform and Reauthorize the Election Assistance Commission”
Republicans in the Ohio Legislature are pushing a plan that could cost the state’s public universities millions of dollars if they provide students with documents to help them register to vote. Backers of the bill describe it as intended to resolve discrepancies between residency requirements for tuition and voter registration, while Democrats and other opponents argue it is a blatant attempt at voter suppression in a crucial swing state.
“What the bill would do is penalize public universities for providing their students with the documents they need to vote,” Daniel Tokaji, a professor and election law expert at Ohio State University told TPM. “It’s a transparent effort at vote suppression — about the most blatant and shameful we’ve seen in this state, which is saying quite a lot.”
“ENQUIRER EXCLUSIVE: Voter fraud, or just errors? Many ‘second’ votes were by people unsure that first one would count”
Important report from Hamilton County, Ohio.
Republicans several years ago seized the upper hand in the so-called “voting wars” by pushing voter ID and other measures that created new voting restrictions. But now Democrats across the country are fighting back.
The Lawyers’ Committee has posted the Supreme Court documents:
Supreme Court Documents:
Click here for Texas’ Jurisdictional Statement.
Click here for the Lawyers’ Committee’s Motion to Affirm.
Click here for the Justice Department’s Motion to Affirm.
Click here for another intervenor’s Motion to Affirm.
Following other far-right attacks on comprehensive immigration reform, True the Vote, a Tea Party group purporting to combat voter fraud, is now rallying against the Senate’s immigration bill. In a fundraising email to supporters, True the Vote founder Catherine Engelbrecht warned that the bill presents a “golden opportunity” to allow “millions of newly legalized immigrants” to “undermine our electoral system.”
• Allen is charged with attempting to vote by requesting an absentee voter ballot, despite being a resident of Florida. She hasn’t lived in Ohio since 2009.
• Strickland is charged with registering to vote and then voting early at the Board of Elections’ Office despite being a resident of Tennessee. In a February Board of Elections hearing about the matter, Strickland’s daughter told the board her mother visits six months each year.
• Wilson is charged with registering to vote and then voting early at the Board of Elections’ Office using a fictitious address. According to board of elections officials, he lives in Northern Kentucky, but registered from an Ohio address and voted in Hamilton County.
Voter ID was just the beginning.
A trio of bills aimed at overhauling access to the ballot box in Pennsylvania will get a hearing on Thursday, when the Senate Democratic Policy Committee meets in the Allegheny County Courthouse, Downtown, at 10 a.m.
The bills would allow voters to cast ballots up to 15 days before Election Day; vote absentee without giving an excuse; and register on the same day as voting.
Salon, “Judge Rips Obama’s Plan B Stance:”
This morning, [Judge] Korman repeatedly slammed his hand down on the table for emphasis, interrupting the government counsel’s every other sentence with assertions like, “You’re just playing games here,” “You’re making an intellectually dishonest argument,” “You’re basically lying,” “This whole thing is a charade,” “I’m entitled to say this is a lot of nonsense, am I not?” and “Contrary to the baloney you were giving me …” He also accused the administration of hypocrisy for opposing voter ID laws but being engaged in the “suppression of the rights of women” with the ID requirement for the drug…
The government didn’t argue the merits of requiring a photo ID or that the drug only be sold in locations with an on-site pharmacy, but Korman made clear why he found that to be an inadequate compromise: “You’re using these 11- and 12-year-olds to place an undue burden on women’s ability to access emergency contraception. If it’s an impediment to voting, it’s an impediment to get the drug.”
He cited Brennan Center statistics — which he said Eric Holder had also cited in a speech before the NAACP — showing that 25 percent of African-Americans of voting age don’t have a photo ID, and also dismissed the government’s suggestion that 15-year-olds, who usually aren’t eligible for a driver’s license, could use a birth certificate, since that’s not a photo ID. ”You’re disadvantaging young people, African-Americans, the poor — that’s the policy of the Obama administration?” (He didn’t mention it, but immigrants would also face additional barriers.)
TPM: “Ken Bennett, the Secretary of State of Arizona, receives a $70,000 annual salary. But he also, it turns out, receives $2,000 a month for his work as a board member of the Cancer Treatment Centers of America, a for-profit company founded by a one of the key people behind the tea party group FreedomWorks.”
A group calling itself Concerned Citizens of Mount Vernon is claiming the 2012 school vote was rife with fraud and has sent letters to the U.S. Department of Justice and state attorney general requesting monitors for this year’s election and budget vote….
A review of documents obtained by The Journal News showed that in some cases, the group’s concerns were unfounded: Votes they thought were fraudulent appear to be legitimate. But the review did uncover instances of phantom addresses, duplicate names and, in at least one case, a dead voter.
Fort Wayne Journal Gazette editorial: “Before Indiana GOP officials bluster on too long about how dirty the Indiana Democratic Party’s kettle is when it comes to election fraud, they should keep in mind their own record.”
Florida election supervisors will be allowed to restore early voting up to 14 days — including the last Sunday before Election Day — and increase the kinds of locations sanctioned for early-voting, under a bill passed by the Legislature in its final hours of session Friday.HB 7013 reverses much of the changes by the Republican-led Legislature in 2011 that limited early voting down to eight days. At the time, proponents said the move was intended to reduce voter fraud, but later was acknowledged by some party leaders as a way to dampen Democratic turnout in the wake of President Barack Obama’s victory. The result was long lines on Election Day last year in large, urban counties such as Miami-Dade. Those voting problems, studies showed, disproportionately impacted minorities, registered Democrats and no-party affiliated voters.
Embarrassed by an elections meltdown, lawmakers headed to the Florida Capitol this year with a pledge to undo a law that helped lead to long lines, angry voters and jeers about “Flori-duh.”
But the elections clean-up bill that the House passed on the very first day of the legislative session has yet to pass the Legislature as the last day dawns.
Lawmakers overwhelmingly support the plan to reverse a 2011 election law by expanding the number of early voting sites and days. The bill also gives people a chance to correct an absentee ballot they forgot to sign and would make it easier to prosecute people caught with multiple absentee ballots.
But there’s a major hang-up between the House and Senate: a plan to punish election supervisors deemed ineffective and “noncompliant” with the state’s election code.
I don’t think there’s any questionthat the Miami-Dade elections office needs to make some major changes.
The latest in the Colorado voting wars.
I’ll admit to being somewhat surprised that the evidence the judge has requested hasn’t already been presented, given the importance of the underlying question. Hopefully, the data will shed at least a little light on the impact of the proposed ID law.
There’s no guarantee it will, however; as we’ve already seen in other courts, once a match is complete the arguments invariably begin about the significance of the results. Moreover, there’s no guarantee that the state (which is responsible for maintaining the voting rolls) will be able to produce the requested data: a spokesperson for the state said it will “do its best to comply” with the requirement to deliver the data by next Tuesday.
While it is encouraging to see this potential development in the Pennsylvania case, it does seems strange to be cheering the use of evidence in a trial. Still, given how little evidence has been brought forth in ID litigation across the country, even this tiny (if obvious) step suggests that we may be inching closer to a greater use of data in the fierce fights over voter ID and other election policy issues across the nation.
“Overhauling the Vote: Colorado bill raises possibility of voter fraud and intimidation, critics say”
This item appears at the Washington Free Beacon.
Denver Post: “Republicans, arguing the bill is being ‘crammed’ through the legislature, asked that the 120-plus page bill be read in its entirety, taking up more than two hours of debate time.”
Colorado now ground zero in the voting wars.
Washington Times: “On Friday, three former U.S. Justice Department attorneys filed lawsuits in the U.S. District Court for the Southern District of Mississippi seeking an order to compel election officials in Jefferson Davis County, as well as in nearby Walthall County, to clean up their voter rolls.”
RALEIGH — Gov. Pat McCrory announced late Friday that he was replacing all members of the State Board of Elections as of Wednesday, just as an investigation into political contributions made to McCrory and other top Republicans’ officeholders’ campaigns is getting underway….
McCrory spokeswoman Kim Genardo said the timing of the appointments had nothing to do with the investigation. All five members’ terms expire April 30, and McCrory’s office wants new appointments to be made on time.
The governor selects members from a list of five candidates submitted by each party. McCrory selected the top two Democrats, Genardo said.
Leake, who has been on the board for 20 years and chairman for 16, said that he and current member Robert Cordle were on the list submitted by the state Democratic chair.
But Leake also dismissed the idea that the timing was motivated by the investigation.
“I don’t believe that to be the case, no,” he said. “I believe that we would all have been replaced regardless.”
MySA.com: “The Texas House erupted Thursday into a partisan showdown over voting rights when the chamber’s Republicans muscled through a measure they argue will help crack down on mail-in voter fraud. Tensions flared on House floor for more than three hours as Democrats fought Republicans over a measure to criminalize ‘ballot harvesting’ of mail-in votes, a process in which a group or an individual collects and mails completed ballots for other people.”
One cannot say that fears of voter fraud through absentee ballot vote buying are unfounded the way fears of impersonation voter fraud (the supposed reason for voter i.d. laws) are.
Donetta Davidson and Joan Fitz-Gerald have writen this oped in the Denver Post.
State may also expand early voting, but Democrats say it is not enough. NBC Miami:
The Senate did strip a provision that would have created restrictions on people who assist voters who can’t read English, are blind or have other disabilities. The language would have required a voter seeking help to know the assistant before Election Day and wouldn’t have let anyone help more than 10 voters. Voting rights groups criticized the language, pointing at Haitian-American and other communities where volunteers help voters who have language barriers.
Press release: “Today, Reps. Steve Israel (D-NY) and Louise Slaughter (D-NY) announced legislation to move Election Day from the first Tuesday in November to the first full weekend, thereby making it more convenient for voters and increasing voter turnout.”
Florida lawmakers are poised to pass voting law changes after being mocked for long lines and delayed results during the 2012 presidential election.
But in the waning days of the legislative session, Senate Democrats are criticizing the plan as not going far enough to address the problems at the polls last year.
“This bill mandates only two things that will address concerns from the last election,” wrote Sen. Chris Smith, the Senate Democratic leader from Fort Lauderdale, in a column in the Sun-Sentinel April 21. “It allows persons to correct an absentee ballot if they did not sign it and requires an extra two hours a day for early voting. Everything else in this bill is discretionary. Under SB 600, Broward, Dade, Palm Beach, Duval, Orange, Hillsborough, Jackson, Franklin, Dixie and all the rest of our 67 counties can do exactly what they did in 2012, with the exception of just two more hours per day for early voting. Nothing else is mandated. Nothing else is changed.”
The column left readers with the impression that the bill changed little for the better. Smith called it “an opportunity lost.”
Democrats and Republicans are split on some provisions of the bill, so there are varying perspectives as to what “concerns” came up after the last election. We wanted to fact-check Smith’s claim that the election bill “allows persons to correct an absentee ballot if they did not sign it and requires an extra two hours a day for early voting. Everything else in this bill is discretionary.”
Project Vote release on a particularly controversial provision in Florida’s election bill.
Brennan Center blog post.
AP reports. Follow @IvanJourno if you care about what’s happening with Colorado election law.
Trevor Potter: The best hope for reform is with registration reforms at the state level, says the lawyer for John McCain’s 2008 campaign and Stephen Colbert’s super PAC.
AFJ blogs on the Justice’s recent statements about the Voting Rights Act.