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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: voter id
This is quite consistent with Chapter 3 of The Voting Wars. Efforts to suppress the vote often backfire these days and may actually increase turnout.
Texas has now filed its reply brief in the DC Court, reaching the question whether section 5 of the Voting Rights Act is unconstitutional as exceeding congressional power. The issue is now before the Supreme Court in the Shelby County case. The district court could hold for the Supreme Court’s decision in that case, or decide the issue, allowing Texas to take this issue to the Supreme Court while Shelby County is pending.
One interesting question debated in the briefs is whether the three-judge DC court is bound by the Shelby County precedent.
MPR reports the near concession. This is a huge deal. Before this year, voter id had been supported in public by both Democratic and Republican voters (though opposed by Democratic elites). This is the year that voter id and the voting wars more generally broke through as a major political issue on the Democratic side on the left.
The defeat of this amendment means that the dispute over ID in the public is now more likely to reflect the split among elites.
More on the backlash over Republican overreaching on ID, early voting, etc. to come.
Fight in TN: “Less than 2,000 Memphians have the photo library cards issued by the city of Memphis starting in July. But whether they are valid ID in order to vote in the Nov. 6 elections is causing some confusion in the wake of an Appeals Court ruling last week. The court ruled they are but instructions from the state to the Shelby County Election Commission after the ruling is no change in how those voters are treated. The ruling came as the early voting period in advance of the Nov. 6 Election Day was already under way. The early voting period runs through Thursday.”
I did not know they were Memphians.
Jim Ragsdale on the Minnesota voter id amendment and Coleman-Franken.
This item appears at The Nation.
I wonder if they have/will post a correction.
Max Hailperin offers this perspective on the fight over Minnesota voter id.
WSJ’s “Number’s Guy” has written this column.
WaPo: “Despite an Oct. 2 ruling by a Pennsylvania judge putting the state’s new voter ID law on hold, a series of misleading ads and announcements is creating confusion and fear among residents two weeks before Election Day, civil rights and union leaders contend.”
It wasn’t hard to see this coming.
“Filling in blanks about voter ID; Both sides in Minnesota’s voter photo identification debate try to paint pictures about how life would look if the requirement passes November 6, but the real picture has yet to be painted. “
Via SCOTUSBlog, comes a link to the Obama opposition to the State of Ohio’s emergency application to Justice Kagan (and presumably the Supreme Court) to put on hold the Sixth Circuit’s recent order requiring Ohio county election officials to offer early voting to everyone on the last three days before the election if it is offered to military voters. Ohio had early voting in 2008 but got rid of it this year, except for certain military and overeas voters. A federal district court held that U.S. constitutional equal protection principles required the extension of early voting to all, a ruling somewhat modified by the Sixth Circuit. (More on these rulings here and here.)
SCOTUSBlog also reports on the amicus briefs: “The Democrats picked up the support for their side in this dispute by a group of Democratic state senators (their amicus brief is here), while the state’s leaders picked up the support of 15 other states (their amicus brief here). In addition, the state also gained support from military and veterans’ organizations, who had also taken part in the lower court proceedings (their amicus brief is here.)”
Of all the filed briefs, only the Obama campaign brief even mentions Bush v. Gore, though I think it is hard to see how the equal protection holdings of the lower courts could be justified without that case. In part, here is what the brief says on the relevance of this case—one which the Supreme Court has never cited for any purpose since it was decided in December 2000:
The Constitution safeguards not only the abstract right to vote, but also the integrity of the electoral process: “The right to vote is protected in more than the initial allocation of the franchise.” Bush v. Gore, 531 U.S. at 104. “Equal protection applies as well to the manner of its exercise.” Id. (emphasis added). Every “citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336 (1972); see Harper v. Va. State Bd. of Elections, 383 U.S. 663, 665-70 (1966)…
Where, as here, the challenged restriction is not evenhanded, that disparate treatment itself requires justification. See, e.g., Harper, 383 U.S. at 667-70. Put differently, the decision of the State to turn away some voters and not others from an open polling place itself imposes a burden on the exercise of the franchise. See Bush v. Gore, 531 U.S. at 104 (emphasizing the “equal weight accorded to each vote and the equal dignity owed to each voter”). “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.” Bush v. Gore, 531 U.S. at 104-05 (emphasis added). Accordingly, the restriction presently before the Court cannot be sustained absent a relevant, legitimate justification. See Crawford, 553 U.S. at 189-90; Burdick, 504 U.S. at 434….
The Court is unlikely to reverse the decision below because it is correct. The Equal Protection Clause prohibits states from providing differential access to the ballot box on arbitrary terms. Yet that is precisely what is threatened by the statute under review. On October 2, 2012, 35 days before Election Day, polling places opened across Ohio for all voters.7 But absent the district court’s injunction, on the final three days before Election Day, those polling places will close for some—but not all—voters. That selective access to voting, unique to Ohio, has no justification. Rather, it is the consequence of a muddled legislative process marked by incoherence and confusion.
This arbitrary and irrational discrimination between voters violates the Equal Protection Clause. In light of Ohio’s troubled history of election administration, the State made the decision to expand the period in which voters may cast their ballots in person. Having done so, the State may not arbitrarily exclude some voters, but not others, from the polling place on any day during the voting period. Bush v. Gore, 531 U.S. 98, 104-05 (2000).
Reading Bush v. Gore broadly to contain this nonretrogression principle is sure to be controversial. The question is whether it is controversial enough to prompt the Court’s intervention is hard to say. The 15 states raising a federalism issue—and I believe each of those states signing this brief has a Republican attorney general—signals both the partisan and ideological stakes in this case.
Star-Tribune: “A state senator who sponsored the proposed photo ID constitutional amendment took his beef against Secretary of State Mark Ritchie to a judge on Friday. Sen. Scott Newman, R-Hutchinson, filed a complaint accusing Ritchie, a DFLer who opposes the amendment, of using his website, staff and state resources to promote his political opposition to the measure. An Administrative Law Judge heard arguments in the case Friday without making a decision.”
Analysis: 3-Judge Court Unanimously Preclears South Carolina Voter ID Law, But Delays Implementation Until 2013
You can find the opinion at this link. Here’s Judge Kavanaugh’s summary paragraph:
In short, Act R54 allows citizens with non-photo voter registration cards to still vote without a photo ID so long as they state the reason for not having obtained one; it expands the list of qualifying photo IDs that may be used to vote; and it makes it far easier to obtain a qualifying photo ID than it was under pre-existing law. Therefore, we conclude that the new South Carolina law does not have a discriminatory retrogressive effect, as compared to the benchmark of South Carolina’s pre-existing law. We also conclude that Act R54 was not enacted for a discriminatory purpose. Act R54 as interpreted thus satisfies Section 5 of the Voting Rights Act, and we grant pre-clearance for South Carolina to implement Act R54 for future elections beginning with any elections in 2013. As explained below, however, given the short time left before the 2012 elections, and given the numerous steps necessary to properly implement the law – particularly the new “reasonable impediment” provision – and ensure that the law would not have discriminatory retrogressive effects on African-American voters in 2012,we do not grant pre-clearance for the 2012 elections.
Judge Kavanaugh’s careful analysis is persuasive, and is fully joined by both other judges [corrected]. Especially important was how much easier South Carolina’s i.d. requirement is to comply with than other states, especially the ability to get around the requirement by showing a “reasonable impediment.” Judge Kollar-Kotelly emphasized how if South Carolina actually makes it harder to get the i.d. through new construction of the meaning of reasonable impediment, follow on section 5 lawsuits would be possible.
But perhaps the greatest significance of this ruling, apart from the fact that South Carolina is being treated differently from Texas based on the specific facts, is what Judge Bates, joined by Judge Kollar-Kotelly, said in a concurring opinion about the continued need for section 5 (Judge Bates recently upheld the constitutionality of section 5 in a case heading to the Supreme Court). He said it illustrated how section 5 works as an important bargaining chip for minority voters:
First, to state the obvious, Act R54 as now pre-cleared is not the R54 enacted in May 2011. It is understandable that the Attorney General of the United States, and then the intervenor-defendants in this case, would raise serious concerns about South Carolina’s voter photo ID law as it then stood. But now, to the credit of South Carolina state officials, Act R54 as authoritatively interpreted does warrant pre-clearance. An evolutionary process has produced a law that accomplishes South Carolina’s important objectives while protecting every individual’s right to vote and a law that addresses the significant concerns raised about Act R54’s potential impact on a group that all agree is disproportionately African-American. As the Court’s opinion convincingly describes, South Carolina’s voter photo ID law, as interpreted, now compares very favorably with the laws of Indiana, Georgia and New Hampshire, each of which has passed legal muster through either federal court constitutional review or pre-clearance by the Attorney
General. The path to a sound South Carolina voter photo ID law has been different, given the essential role of the State’s interpretation of key provisions.
Which brings me to my second observation – one cannot doubt the vital function thatSection 5 of the Voting Rights Act has played here. Without the review process under the Voting Rights Act, South Carolina’s voter photo ID law certainly would have been more restrictive. Several legislators have commented that they were seeking to structure a law that could be precleared. See Trial Tr. 104:18-21 (Aug. 28, 2012) (Harrell) (“I was very aware at the time that we were doing this that whatever we would have to do would have to be subject to the Voting Rights Act because that would be the basis for the Department of Justice preclearing the bill for us.”); id. at 105:15-18 (“[I] ask[ed] the staff who drafted the bill for me to please make sure that we are passing a bill that will withstand constitutional muster and get through DOJ or through this court.”); Trial Tr. 108:23-25 (Aug. 27, 2012) (Campsen) (agreeing that he was “interested in what voter ID legislation had been precleared” in drafting R54); id. at 148:10-15 (discussing
senators’ statement that “[t]he responsible thing to do was to fix [the bill] so that it would not fail in the courts or get tripped up by the Voting Rights Act”); Trial Tr. 141:9-12 (Aug. 28, 2012) (McConnell) (discussing his efforts on behalf of a bill that “had a better chance of getting preclearance”); id. at 182:18-20 (on the Senate floor “[t]here was discussion about” how “to craft a bill that would comply with the voting rights amendment”). The key ameliorative provisions were added during that legislative process and were shaped by the need for pre-clearance. And the evolving interpretations of these key provisions of Act R54, particularly the reasonable impediment provision, subsequently presented to this Court were driven by South Carolina officials’ efforts to satisfy the requirements of the Voting Rights Act.
Congress has recognized the importance of such a deterrent effect. See H.R. Rep. No.109-478, at 24 (2006) (finding that “Section 5 encourage[s] the legislature to ensure that any voting changes would not have a discriminatory effect on minority voters,” and “that the existence of Section 5 deterred covered jurisdictions from even attempting to enact discriminatory voting changes” (internal quotation marks omitted)); S. Rep. No. 109-295, at 11 (2006) (finding “some reason to believe that without the Voting Rights Act’s deterrent effect on potential misconduct” racial disparities in voting “might be considerably worse”). The Section 5 process here did not force South Carolina to jump through unnecessary hoops. Rather, the history of Act R54 demonstrates the continuing utility of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.
This opinion, finding some due process rights to a hearing to get such an ID when the BMV has refused, was issued by the same trial judge who rejected the broad claims against voter id in the Crawford case.
Bloomberg does a video interview with Bob Bauer.
The LA Times reports.