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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
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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: direct democracy
“Too disruptive,” Augusta County officials say, apparently about investigation into a possible problem related to access to polling for the disabled.
“Can Initiatives Be Used to Regulate the Manner of Selecting Presidential Electors, and Can Initiative Proponents Defend in Federal Court?”
Vik Amar has posted this draft on SSRN. Here is the abstract:
We have now had more than a century to assess America’s initiative device, and the Progressive movement of which it was an outgrowth. Beginning with South Dakota in 1898, close to two dozen states (almost all of them west of the Mississippi) have incorporated the initiative and/or referendum into their state constitutions. Today, many states — including California, Washington, Oregon and Colorado — transact some of their most important and high-profile legislative business via direct democracy.
There is a wealth of scholarship analyzing the interface between state law direct democracy devices and the U.S. Constitution. Yet most of it has focused on a few aspects of the federal Constitution. In particular, there has been significant work done on the interplay between direct democracy and: (1) Article IV’s Republican Guarantee Clause; (2) the First Amendment’s freedoms of speech and petition; and (3) the Fourteenth Amendment’s commands of process and equal protection.
In this Essay I examine two questions of recent and looming importance concerning the way state law initiatives interact with two other important aspects of the U.S. Constitution: Article II’s delegation to state “legislatures” of the power to prescribe the method of appointing electors to the so-called electoral college, and Article III’s requirement that federal courts limit themselves to resolving only “cases” and “controversies.” In particular, I examine: (1) whether states can join the National Popular Vote Compact (NPVC) — an attempt to move the country a long way in the direction of a national popular presidential election — via initiatives rather than statutes adopted by state legislatures; and (2) whether and when official proponents (i.e., drafters and signature gatherers) of initiatives should be allowed to defend those initiatives against constitutional challenges in federal court, when the elected representatives who ordinarily defend state laws against constitutional attack – usually the Attorney General and/or Governor — decline to defend. I argue that the case against NPVC participation by initiative is relatively weak, and that states thus should be able to join the NPVC via the initiative. I also argue, using California’s Proposition 8 (a constitutional amendment banning same-sex marriage) as a case study, that although states can (and should) empower initiative proponents to defend in federal court when elected representatives decline to do so, there are important federal limits that federal courts ought to enforce regarding the circumstances under which proponents ought to be permitted federal standing to defend.
Roll Call: “The Justice Department responded Friday to Sen. David Vitter’s request for more information about its enforcement of a federal voter registration law — a response the Louisiana Republican demanded before deciding whether to drop his threat to block the nomination of Thomas Perez as the next Labor secretary.”
From a new PPIC survey:
Strong Support for the citizens’ Initiative—and for Reforming the Process
Consistent with this preference for giving the electorate the final say on state tax increases, 72 percent of likely voters say it is a good thing that a majority of voters can make laws and change public policies by passing initiatives (24% a bad thing). Solid majorities express this view across political parties, regions, and demographic groups. Since PPIC began asking this question in October 2000, large majorities of likely voters have said it is a good thing that voters can make laws by passing initiatives.
A majority of likely voters (62%) are satisfied with the way the initiative process is working, but most of them (55%) are only somewhat satisfied. Three-fourths (74%) say the process needs changes (36% major changes, 38% minor changes). Only 19 percent say it is fine the way it is. Asked about three changes that have been suggested, overwhelming majorities support each: 84 percent favor increasing public disclosure of funding sources for signature gathering and initiative campaigns, 78 percent favor having a period of time in which the initiative sponsor could meet with the legislature to see if there is a compromise solution before putting a measure on the ballot. And 77 percent favor having a system for reviewing and revising proposed initiatives to try to avoid legal issues and drafting errors. Each of these three ideas has strong support across party lines.
I have now had a chance to give an initial read to the mammoth report of the IG on the voting rights section and I have some thoughts which could change upon closer scrutiny (news reports at NYT, LAT). Here are my takeaways from the report.
1. With all the controversies over politicized decisionmaking at the Justice Department–from the Bush Administration DOJ’s preclearance of the Georgia voter id law and Texas mid-decade redistricting to the Obama Administration DOJ’s handling of the New Black Panthers Party controversy—the IG finds no proof that either administration made improper enforcement decisions or administered the law unfairly. The controversial results in the cases were explainable by Democrats’ and Republicans’ different ideological goals and emphases, as well as discretionary enforcement and litigation choices, well within the policy-making powers of different administrations. In this era of the voting wars, it is unrealistic to expect that differing views over voting issues wouldn’t spill over into DOJ handling of such issues. The most inflammatory charges made in recent years by conservatives about the Obama DOJ’s handling of voting rights matters—such as that the department responded more quickly to liberals’ FOIA requests to the department and that Obama hiring for the section was ideologically motivated—were found to be unsupported. (The DOJ did find that the neutral criteria used for hiring, such as looking for candidates with experience with voting rights cases, skewed hiring towards liberals. The IG suggests changing the criteria to avoid an appearance of bias.) It is worth emphasizing from this section that Abby Thernstom has been proven right once again about the New Black Panthers Party case: really small potatoes.
2. The sharp divisions on ideological grounds over the handling of these claims led to a poisonous atmosphere at DOJ’s voting section. From Bradley Schlozman’s statements to “gerrymander the libs” out of the section, to email references to form DOJ Section Chief Chris Coates as a “klansman,” the last decade has seen ideological warfare in the voting section. The report gives numerous examples of liberals criticizing conservatives and conservatives criticizing liberals, of nastiness, of comparisons to Nazis, to anonymous nasty postings by Dept. employees on various blogs, and to a general culture of mistrust which developed between the two sides within the agency. From my initial read, it seems like conservatives in the department bore most of the personal attacks from career voting rights attorneys who are mostly liberal. The report concludes with remarks about the poisonous partisan atmosphere at the DOJ, and says that the culture of the section needs to change.
3. It is tough to draw the line between political appointees of the department improperly using ideology as a criterion for making hiring and firing decisions and the appointees making sure that employees are on board in furthering the goals and emphases of the administration. The IG is critical of how Republican appointees treated Joe Rich and how Democratic appointees treated Chris Coates. I’m not sure that the two cases are equivalent–I’d recommend that readers look at the report for themselves–but the IG report seems to be trying to make the case that the two administrations were equally at fault on this score. So when Coates, a conservative, is excluded from sensitive meetings by political DOJ officials (I presume here over what to do if the Supreme Court strikes section 5 of the Voting Rights Act), was that proper or improper? Again, readers should read and judge for themselves
4. One of the sharpest divisions between liberals and conservatives was over whether protections of the voting rights act should apply to white voters—either as a matter of legal interpretation of the Act or administration priorities. Consider these two passages from the report giving views within the department:
Coates and other career attorneys told the OIG that they were aware of comments by some Voting Section attorneys indicating that the Noxubee case should have never been brought because White citizens were not historical victims of discrimination or could fend for themselves. Indeed, two career Voting Section attorneys told us that, even if the Department had infinite resources, they still would not have supported the filing of the Noxubee case because it was contrary to the purpose of the Voting Rights Act, which was to ensure that minorities who had historically been the victims of discrimination could exercise the right to vote….
Many of those individuals told the OIG that they believed that the reason the voting-rights laws were enacted was to protect historic victims of discrimination and therefore the Section should prioritize its resources accordingly. Additionally, some of these individuals, including one current manager, admitted to us that, while they believed that the text of the Voting Rights Act is race-neutral and applied to all races, they did not believe the Voting Section should pursue cases on behalf of White victims. Indeed, our review of Voting Section e-mails revealed widespread and vehement opposition among career employees to the prosecution of the Noxubee matter precisely because the defendants were Black.
5. Whether or not the Supreme Court strikes section 5 of the VRA this summer, there needs to be some rethinking of the mission of the voting section, and whether and how such an agency can function in the era of the voting wars with liberal and conservative career attorneys overseen by political staffs which change policy and enforcement priorities with each new administration.
6. Finally, on Tom Perez: I don’t see anything in here which would seriously interfere with his nomination to be Secretary of Labor. The worst that’s said about him is that he gave testimony about the involvement of political appointees in the New Black Panthers case which turned out to be incorrect. There was no evidence he made any willfully misleading statements.
This is not a new problem. I’ve written about campaign finance issues surrounding candidate controlled ballot measure committees in this Southern California Law Review article.
Leslie Graves of the Lucy Burns Institute sends along the following:
I thought you might be interested in a publication we just released: Local Ballot Initiatives: How citizens change laws with clipboards, conversations, and campaigns. It provides an overview of how individual citizens can use the initiative process at the local level.
Only 24 states allow for statewide initiative and referendum, but 48 states have at least one city that allows ballot initiatives to decide city issues and laws.
In addition to the guide, we’ve researched the laws in each state and have made all of the information available on Ballotpedia.org. People can click on their state and learn about the various laws and regulations that govern the local ballot initiative process.Similar information is available for every state.
The guide is available as a free download online, and readers who want a (free) hard copy snail-mailed to them can contact our Director of Communications at lauren.rodgers- at – lucyburns.org and just ask for one.
“The Promise and Limits of Citizens’ Assemblies: Deliberation, Institutions and the Law of Democracy”
Michael Pal has posted this draft on SSRN (forthcoming, Queens Law Journal). Here is the abstract:
Recent experiments with deliberative democracy in British Columbia and Ontario have brought new life to the debate over electoral reform in Canada and have called into question the roles of the judiciary and the legislature on electoral law. In both provinces, Citizens’ Assemblies composed of randomly selected members were tasked with deliberating on electoral reform and brining their recommendations to the electorate in a subsequent referendum. These Assemblies were lauded as innovative alternatives to the conventional legislative decision-making process. The author examines the potential and the limitations of the Assemblies, by situating the Citizens’ Assembly mode within roader discussions bout the law of democracy. Specifically, the article explores how well the Assemblies in British Columbia and Ontario insulated electoral reform from manipulation by elected representatives. Although he concludes that those Assemblies were less successful at keeping politics out of the process than many have suggested, he argues that the model nevertheless makes a valuable contribution to the ongoing debate between structural theory and rights theory regarding election law and the right to vote. In light of the fact that both sides of the debate are dissatisfied with the Supreme Court of Canada’s section 3 jurisprudence, there are good reasons for both structural theorists and rights theorists to support the continued use of Citizens’ Assemblies on issues of electoral reform. The author concludes by offering recommendations for improving the Citizens’ Assembly process in the future.
Michael Gilbert has posted this draft on SSRN (Minnesota Law Review). Here is the abstract:
Judges claim to resolve ambiguities in initiatives by identifying and giving force to “voter intent,” but scholars reject that on the ground that such intent does not exist. This paper argues otherwise. We can understand the search for voter intent to be a search for the majoritarian interpretation. The interpretation preferred by the median voter has special claim to being majoritarian. Hence my central claim: judges select from plausible interpretations of an initiative the one favored by the median voter. The claim is both positive and normative. I hypothesize that judges do decide this way, in part because of electoral incentives, and I provide reasons to think they should decide this way.
The analysis generates a number of insights. Voter intent, unlike legislative intent, can be conceptualized concretely and identified. Judges who seek the majoritarian interpretation of an initiative must consider the views of all voters, including those who voted against it. In some circumstances, judges who interpret initiatives in light of their career prospects can be understood to act legalistically. Finally, the same electoral accountability that can lead state judges to interpret initiatives in majoritarian fashion has a downside: it can make their constitutional review of initiatives too deferential.
See here. A concurring opinion by Judge Smith reached the merits and rejected the as-applied claim in this case involving donors to an anti-gay rights referendum.
Here is a guest post from USC’s John Matsusaka, one of the very best people working in the direct democracy area:
Yesterday the New York Times reported that rich individuals were heavily involved in funding California ballot propositions, and at a rate unlike any “ballot in modern history.” The article gave no information from previous elections to support the claim, though. To satisfy my own curiosity, I spent a few minutes online looking at the 2006 election cycle, and found that Reed Hastings spent $5 million on Prop 88, venture capitalist John Doerr spent $2 million on Prop 88, Steve Bing spent $48 million on Prop 87, and James Holman spent $2 million on Prop 85. I have a feeling it would not be difficult to find other years like this that don’t look so different from 2012 (a good research topic for election law scholars). David Broder spent an entire chapter in his 2000 book Democracy Derailed discussing rich individuals who were active in proposition campaigns in the late 1990s — back then it was Ron Unz on bilingual education, Paul Allen on a football stadium for the Seahawks football team, Reed Hastings on charter schools, and George Soros on medical marijuana, among others. It may be noteworthy that the wealthy are active in initiative politics, but I am not sure it is anything new.
Governing: “Nearly 25,000 signatures submitted to place two initiatives on North Dakota’s November ballot were fraudulent, according to a state investigation, raising questions about the widespread practice of contracting out signature-gathering for ballot petitions.”
See this order.
LA Times: “A Sacramento County Superior Court judge on Monday ordered the secretary of state to change language on the November ballot describing Proposition 32, the initiative that promises to eliminate special-interest money in politics.”
Complex, Fractured Michigan Supreme Court Decision Includes Fight Over Font Size and Substantial Compliance
You can read the opinion here in all of its technical glory (including pictures).
More on what the opinion means for Michigan here.
On the surface, this is a fight about the meaning of 14-point font. But the concurring opinion for three Justices shows how this is really about the Democracy Canon:
CAVANAGH, MARILYN KELLY, and HATHAWAY, JJ. (concurring in part and dissenting in part).
We concur in Justice MARY BETH KELLY’s holding that a writ of mandamus should issue in this matter. As a result of our concurrence on this point, Proposition 4 will appear on the ballot.
However, we strongly dissent from the grave actions taken by the justices supporting the position in part III(A) of Justice MARY BETH KELLY’s opinion. Their decision to depart from 30 years of precedent by abandoning the substantial-compliance doctrine throws Michigan’s electoral process into chaos and disenfranchises citizens from one of the most basic rights of democracy: the right to vote.
The holding of these justices that a mere clerical technicality—which has not and cannot be shown to create any harm whatsoever—could have prevented a referendum vote from taking place, in the face of more than 200,000 citizens who signed the petition to place the referendum on the ballot, is unprecedented and highly disturbing.
That position lacks any sense of the gravity and importance of democracy. Article 1, § 1 of Michigan’s Constitution states that “[a]ll political power is inherent in the people. Government is instituted for their equal benefit, security and protection.”Furthermore, our Constitution provides that “[t]he legislature shall enact laws to preserve the purity of elections” and “to guard against abuses of the elective franchise . . . .” Const 1963, art 2, § 4. MCL 168.482(2) is one of these laws, and it was intended to protect the election process, but four justices have now turned it into a barrier that could prevent a vote from even taking place. Their holding will have a chilling effect on core political
speech, and we cannot join this result. As the Court of Appeals so eloquently stated in Senior Accountants, Analysts & Appraisers Ass’n v Detroit, 218 Mich App 263, 270; 553, NW2d 679 (1996):
The wisdom of the principle of judicial restraint expressed by our Supreme Court in [Attorney General v Ingham Circuit Judge, 347 Mich 579; 81 NW2d 349 (1957)], is self-evident; the notion that our courts may precipitously intervene in the political arena and preempt a vote of the people is inconsistent with both the role of the courts and the principles of our democracy.
We vote to affirm the Court of Appeals and its issuance of mandamus. As stated, we also concur with Justice MARY BETH KELLY’s issuance of mandamus. As a result, Proposition 4 will appear on the ballot. We note that, given Justice MARY BETH KELLY’s finding of actual compliance—which must necessarily encompass substantial
compliance, because actual compliance is a higher standard than substantial compliance—there are four votes that find at least substantial compliance and allow the voters to determine the merits of this proposal. The determination of whether actual or substantial compliance is the proper standard is unnecessary to the decision in this case.
Bill McGeveran and Myron Orfield have written this oped in the Star-Tribune.
The rejected claim was that part of Prop. 13 “changed the fundamental structure and foundational powers of the legislative and executive branches of government” and therefore was really a revision of the CA constitution and not a permissible amendment. The court held that the CA Supreme Court had already determined that all of Prop. 13 was a permissible amendment in an earlier case.
California Republicans abandon Prop 40′s attempt to overturn CA Redistricting Commission
“Minnesota Supreme Court vigorously questions Photo ID supporters and opponents — but doesn’t tip hand”
Michigan State Supreme Court wants to delve into the meaning of “point” and “typeface” in deciding whether to kick referendum off ballot for using slightly smaller typeface in heading than prescribed 14 point type.
Looks like a good case to resolve with The Democracy Canon.
LA Times: “A Sacramento Superior Court judge Monday dismissed a challenge from initiative proponent Molly Munger, who had sought to ensure her tax measure appeared before one backed by Gov. Jerry Brown on the November ballot. Judge Michael Kenny dismissed Munger’s claim, saying her attorneys were asking him to ‘essentially micromanage the registrar’s office.’ He agreed to delay the ruling until 5 p.m. Monday to give Munger’s legal team a chance to appeal.”
News of a very intriguing change in California’s election law, “to elevate any initiative with a constitutional impact to a more prominent spot on the ballot, right beneath bond measures.” I smell a call for empirical experimentation…
Cincinnati Enquirer: “The gambit, apparently the first time that Ohio legislators have ever effectively killed a referendum destined for voters, sets up a possible lawsuit over a question that could impact this fall’s election: May state legislators repeal a bill that has not yet taken effect and that is up for referendum? Democrats argue the answer is no. They and voting rights advocates complain that Senate Bill 295 isn’t a true repeal but a poison pill – because it restricts early voting by not allowing Ohioans to cast ballots at boards of elections on the three days before Nov. 6.”
the Columbus Dispatchreports.
Federal District Court Rejects Argument that Corporations Have the First Amendment Right to Be Ballot Measure Proponents and that Proponents Have the Right to Remain Anonymous
The federal district court opinion in Chula Vista Citizens for Jobs and Fair Competition v. Norris begins:
This case presents two questions of first impression. It asks whether the First Amendment grants a corporation or association the right to serve as the official proponent of a local ballot initiative. It also asks whether official proponents enjoy a First Amendment right to anonymity during the period when signatures are being gathered. Having considered the arguments and the evidence presented, this Court answers “no” to both questions. The plaintiffs also ask that certain statutory requirements governing ballot initiatives be declared void for vagueness. The Court finds those sections are sufficiently clear to pass constitutional muster.
Joe Matthews offers another reason why the CA Attorney General should not play a role in the ballot measure review process.
Ninth Circuit Upholds Nevada Initiative Signature Gathering Rule Requiring Certain Number of Signatures Per Congressional District
Interesting opinion in Angle v. Miller.
Very important report at Stateline. From my personal experience with this (with Harris’s predecessors), I strongly support taking issue away from the CA attorney general.
“Ohio Senate Republicans take another crack at election reform before the fall presidential election”
Very important article from the Cleveland Plain Dealer. It seems that if the Ohio legislature could repeal this measure and replace it with something similar, it would make an end run around the people’s power of referendum. I wonder if Ohio has some state law limits, as some jurisdictions do, on reenacting legislation which has been the subject of a referendum.
11th Circuit Today Considering Florida Constitutional Amendment Taking Away Legislative Power to Redistrict
“”Could Prop. 13 fall? A lawsuit argues that Prop. 13 was improperly approved; If it succeeded, it would wipe out a system that has governed California for more than 30 years.”
Jim Newton has written this oped for the LA Times.
There have been scattered reports that some people have signed recall petitions against Walker more than once, either to inflate the number of signatures or because they were concerned that their original signature might not be properly counted.
Fitzgerald said state law needed to be changed to guard against that, but also criticized the accountability board for not coming out more strongly against that possibility. He also criticized the board for saying its staff would not automatically strike names in the recall petition such as “Mickey Mouse” and instead in some cases would just flag those names for Walker’s campaign to challenge.
But accountability board spokesman Reid Magney said the board was simply following the law and carrying out a process that would ultimately weed out bad signatures after Walker’s campaign called for striking them.
“There’s an adversarial process designed to weed out fake names as well as people who aren’t qualified to sign and duplicate signatures,” Magney said.
Following up on this post, and this response from Ann Althouse, I started seeing a different parallel to Bush v. Gore. One of the smartest pieces on the doctrine of Bush v. Gore is Roy Schotland’s article on why the case was really about due process (as in, arbitrary and disparate government treatment of votes). That fits much better than the Bush v. Gore‘s equal protection idea of the counting as valuing one voter over that of another.
It strikes me that there’s a similar dynamic here. I don’t know enough about what is happening in Wisconsin to know if the description in Althouse’s post is correct. But if it is true that the G.A.B. is both refusing to verify the accuracy of signatures without evidence of inaccuracies from challengers, and failing to give challengers enough time to compile that evidence, that could well be a due process violation. At least that seems like much less of a stretch than the argument that the G.A.B. procedures is violating the equal protection rights of Wisconsinites who don’t sign the recall petitions.
UPDATE: Joshua Spivak weighs in:
The argument that Walker will only have 10 days to review the signatures (if that limit remains) is mitigated by the fact that Walker and his family are not checking signatures with some hearty band of volunteers. Every single signature examined by the GAB will be closely watched by at least two sets of well-trained, and possibly well paid, eyes from both sides of the aisle. This recall, like the earlier Senate ones, involves two heavily financed sides, both willing to spend whatever it takes to win. Let’s not let that fact escape our mind.
The press release is here. The theory is a major equal protection stretch: it is that it violates the rights of Wisconsin voters who did not sign the Walker recall petition for the government not to affirmatively check recall petitions for duplicates. (The GAB’s position is that it is up to those challenging the recall petitions to complain about duplicate signatures.)
Though the complaint does not cite any caselaw supporting the equal protection theory, I suspect that if this goes further the Republicans will rely on Bush v. Gore. Indeed, my impression in conduct research for The Voting Wars is that Republicans have relied upon the equal protection arguments in Bush v. Gore more often than Democrats in the last decade.