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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: guest blogging election law scholarship
Here is the final guest post from Chris Elmendorf on his forthcoming paper:
Critics of Section 2 have long voiced three specific complaints. In this final blog post about my paper, I’m going to revisit those objections and highlight what’s new in my response.
It is said, first, that Section 2 provides no guidance about the nature of the harms it targets or directives for its judicial administration. The results test notionally protects racial minorities against vote dilution, but neither Congress nor the Supreme Court has been able or willing to explain what vote dilution is, except to say that its presence may be detected through a mysterious judicial inquiry into the “totality of circumstances.”
The second purported problem with Section 2 is its uncertain relationship to the VRA’s overarching ambition: “to hasten the waning of racism in American politics.” Section 2 in operation has powerfully encouraged the drawing of supermajority-minority electoral districts, a practice which, some fear, “may balkanize us into competing racial factions[,] . . . carry[ing] us further from the goal of a political system in which race no longer matters . . . .”
Finally, the critics say, it is doubtful whether Section 2 as an exercise of congressional enforcement authority under the Fourteenth and Fifteenth Amendments is a congruent and proportional response to constitutional violations. This objection follows from the others. If it’s not clear what harms Section 2 guards against, and if Section 2 in practice precipitates racial conflict, then Section 2 is probably not a reasonable congressional remedy for constitutional violations.
The account of Section 2 developed in my paper answers each prong of this critique.
Here is Chris Elmendorf’s latest guest blog post:
In my last two posts, I argued that constitutional doubts about Section 2 could be resolved by conditioning liability on a showing that the plaintiffs’ injury resulted from race-biased decisionmaking by public officials or the majority-group electorate. Though it’s clear from the legislative history that liability under Section 2 does not depend on proof of intentional discrimination by conventional state actors, the text and legislative history of Section 2 are compatible with a requirement that plaintiffs show “to a significant likelihood” that the decisions in question were infected by racial bias (prejudice or stereotyping).
However, if the courts were to hold that Section 2 demands this “significant likelihood” showing, the courts would for all intents and purposes be acting as lawmakers. The text of Section 2, though compatible with this requirement, certainly doesn’t suggest it, nor did any member of the enacting Congress.
My post today addresses two questions about judicial lawmaking authority under Section 2. First, when Congress amended Section 2 in response to City of Mobile v. Bolden, did Congress delegate authority to the courts to play the role of creative partner in developing a common law of racially fair elections, or did Congress intend to fix a particular legal standard in place? Second, to the extent that courts have lawmaking authority under Section 2, should Section 2 precedents have the weak stare effect of precedents under common law statutes (like the Sherman Act), or the “super strong” stare decisis characteristic of most statutory precedents?
Here’ Chris Elmendorf’s latest guest post:
In yesterday’s post, I argued that constitutional doubts about Section 2’s results test would be put to rest if plaintiffs were required to show that their injury resulted from race-biased (prejudiced or stereotyped) decisions by conventional state actors or majority-group voters. This is so even if plaintiffs need to establish only a “significant likelihood” of racial bias, as opposed to proving discrimination “more likely than not.” The constitutional argument is straightforward if the discriminators are ordinary state actors, such as legislators, pollworkers, prison wardens, or public school administrators.
But what if the plaintiff only shows race-biased decisionmaking by voters? Societal discrimination was an overriding concern of the Congress that adopted the results test. Yet private race-discriminatory behavior does not violate the Constitution, so in what sense could a Section 2 that targets such behavior be a congruent and proportional remedy for constitutional violations? The answer lies in the problem of election outcomes that are unconstitutional because they were determined by race-biased voting.
Here’s Chris Elmendorf’s second guest post on his forthcoming piece:
Enacted by Congress in 1982, Section 2 of the Voting Rights Act (VRA) bans electoral structures “which result” in members of a class of citizens defined by race or color “hav[ing] less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” During congressional debates on the bill, critics asked supporters of the proposed results test to identify the “core value” they meant to protect. Whether for reasons of strategy or genuine confusion, the proponents essentially dodged this question, saying only that they intended to restore the legal status quo prior to the Supreme Court’s decision in City of Mobile v. Bolden. (The Bolden plurality wrote that the 14th Amendment disallows electoral structures that “dilute” minority political power only if the structure was adopted or maintained for discriminatory reasons.)
In the years since 1982, the Supreme Court has struggled to identify Section 2’s core value. An antidiscrimination results test necessarily presupposes some benchmark conception of neutrality or fairness against which an allegedly discriminatory result may be measured. As my paper explains, the Supreme Court’s cases variously hint at three different conceptions of the normative benchmark for vote dilution claims, i.e., the entitlement that Section 2 protects: (1) the opportunity to elect a roughly proportionate number of ideally preferred representatives; (2) the representational opportunity that the minority community would have enjoyed under a typical scheme of single-member districts; and (3) the representational opportunity that the minority community would have had absent race-biased decisionmaking by conventional state actors (or majority-group voters).
The third benchmark is in my view the most defensible. A number of lower courts agree and the law is moving in this direction. But there is a serious problem with reading Section 2 such that liability depends on proof of intentional discrimination: the framers of the results test were adamantly opposed to intent tests. The legislative history voices several specific objections to the Bolden plurality’s approach. The intent test “asks the wrong question”; it’s “unnecessarily divisive”; and it poses an “inordinately difficult burden for plaintiffs in most cases.” Yet the legislative history also shows that Congress was very much concerned with impairments of minority political opportunity that result from racial prejudice.
It’s possible to reconcile the legislative history’s objections to intent tests with its tacit endorsement of an intent-sensitive benchmark for what is a discriminatory “result” within the meaning of Section 2. The trick is to expand the object of the intent test (from the lawmakers who enacted the electoral arrangements at issue, to all public actors and majority-group voters whose biased decisions affect minority electoral opportunities), and to relax the standard of proof that plaintiffs must satisfy (from “more likely than not” to something more lenient, such as “significantly likely”).
Let me be clear: I am not arguing that Section 2’s legislative history compels the conclusion that plaintiffs trace their injury to racially biased decisionmaking shown to a “significant likelihood.” Section’s 2’s text and legislative history are perfectly compatible with a mushy, unstructured legal standard in which liability turns on the judge’s unexplained weighing of any number of factors related to minority political participation, past discrimination, socio-economic conditions, voting patterns, and the electoral system itself. But the requirement I propose makes sense of the warring intuitions in the legislative history, and would make Section 2 adjudication more normatively transparent. And as I’ll explain next, it substantially resolves some lingering doubts about Section 2’s constitutionality.
Congress enacted the Section 2 results test as an exercise of its power to enforce the Fourteenth and Fifteenth Amendments. The Supreme Court has since held that enforcement legislation under the Fourteenth Amendment is permissible only insofar as it is a “congruent and proportional” response to constitutional violations. (The same tailoring and proportionality requirement likely applies to enforcement legislation under the Fifteenth Amendment.)
[Continue reading below the fold] Continue reading
Here is Chris Elmendorf’s first guest blog post:
Rick Hasen has kindly invited me to guest-blog this week about my forthcoming article, Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. (2012).
Section 2, the Voting Rights Act’s core provision of nationwide application, has fallen into disfavor. Conservative critics portray it as conceptually opaque, counterproductive in effect, and quite possibly unconstitutional. The Supreme Court has cabined Section 2 with severe gatekeeping conditions. In vote dilution cases, plaintiffs who cannot show the possibility of establishing a compact, majority-minority, single-member district—holding constant the size of the governing body—will be kicked out of court without any consideration of the remedial arrangements they propose. The constitutional avoidance canon has been a mainstay of these decisions. Further and more drastic interpretive narrowings are likely.
My paper provides an interpretive reconstruction of Section 2 that responds to the conservative critique, while accepting the jurisprudential and normative suppositions of the now-quite-conservative judicial center.
If the courts accept my reconstruction, the Voting Rights Act will remain surprisingly robust. Plaintiffs would not have to prove intentional discrimination by conventional state actors. Remedies designed to enable the election of minority candidates would continue to be issued. Plaintiffs could challenge presently untouchable electoral arrangements that encourage or perpetuate racially biased voting. And courts would have strong grounds to overrule barrier-erecting Section 2 precedents that rest on the avoidance canon.
Three ideas anchor my account of Section 2. I’ll develop them in blog posts over the next few days, but for now, here’s a preview.
Injury, and Proof Thereof. Section 2 on my account is centrally concerned with alleviating burdens on minority political participation and representation that result from race-biased (prejudiced or stereotyped) decisionmaking by majority-group actors. Section 2 plaintiffs should be required to trace the injury of which they complain to biased decisions, whether by conventional state actors or by the majority-group electorate. However, plaintiffs need not prove racial bias in accordance with the conventional, preponderance-of-the-evidence standard. It should suffice for plaintiffs to show a “significant likelihood” of bias, rather than proving it more likely than not. The approach I suggest reconciles the legislative history’s conflicting messages about Section 2 and intentional discrimination. And, when paired with my next idea, it substantially resolves constitutional doubts about Section 2.
Section 2’s Constitutional Function. The constitutional function of Section 2 is to cure, or compensate for, racially biased state action that adversely affects minorities’ opportunity to participate in the political process and to elect responsive candidates. Of central importance, Section 2 ameliorates a type of constitutional violation that cannot be remedied through ordinary constitutional litigation: the election outcome that is unconstitutional because of the racial basis for the electorate’s verdict. I argue that, though the individual citizen may have a First Amendment right to vote for “whatever reason he pleases,” the electorate as a whole is a state actor when it puts in office an official who wields or directs the coercive authority of the state. Yet electorate-motive challenges to the outcome of an election for representative almost certainly should be dismissed on political question grounds. Because the underlying constitutional norm cannot be protected by the courts absent congressional enforcement legislation, the “congruence and proportionality” test for constitutional validity should be applied to Section 2 with a very light touch.
Section 2’s Delegation. Section 2 should be understood as a common law statute, or statutory section. It delegates authority to the courts to develop a flexible, evolving body of law in response to infections of the electoral process by racial bias. Section 2 precedents deserve the weak stare decisis effect of precedents under the Sherman Act, the paradigmatic common law statute, rather than the “super strong” stare decisis typical of statutory precedents. The weak stare decisis effect of Section 2 precedents means, among other things, that new understandings of what Section 2 aims to accomplish (and how) can still have a large effect on Section 2 jurisprudence, notwithstanding the accretion of case law over the last thirty years.
In blog posts over the next several days, I will explain the critique of Section 2 that motivates my paper, the nub of my response, and some practical implications. I will pay special attention to the question of why election outcomes should be thought unconstitutional if the electorate acts on the basis of racial considerations that the Constitution denies to the state. This idea may strike some readers as peculiar, and my constitutional defense of Section 2 depends upon it. I very much look forward to readers’ comments.
As the latest in my series of scholars guest-blogging on new or forthcoming election law scholarship, I am happy to report that Chris Elmendorf of UC Davis will be guest blogging this week on his provocative new article, Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes, 160 U. Pa. L. Rev. (2012).