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C H A P T E R ONE
Voting Rights Enforcement in the 2008 Elections
and the Role of the Campaign Legal Center 1
J. GERALD HEBERT
I. The Post-Bush v. Gore Era 1
II. Anticipation of Widespread Election Litigation in 2008 2
III. The Campaign Legal Center’s Voting Enforcement Project 4
A. The Drafting of Legal Templates 4
B. The Campaign Legal Center’s Participation in 2008 Election Litigation 6
1. Willie Ray v. Texas 6
2. United States v. Waller County 7
3. Van Hollen v. Government Accountability Board
(the Wisconsin Suit) 8
IV. Election Litigation during the 2008 General Election Season 9
A. Colorado 9
1. Common Cause v. Coffman 9
B. Florida 9
1. Florida State Conference of the NAACP v. Browning 9
C. Georgia 9
1. ACORN v. Cox 9
2. Morales v. Handel 9
D. Indiana 10
1. Brown v. Rokita 10
2. Curley v. Lake County Board of Elections 10
3. Schoettle v. Marion County Board of Elections 10
E. Michigan 10
1. United States Student Association Foundation v. Land 10
2. Maletski v. Macomb County Republican Party 10
3. Carabelli v. Center for Independent Media 11
F. Missouri 11
1. ACORN v. Scott 11
G. New Mexico 11
1. AAPD v. Herrara 11
2. Garcia v. Fox-Young 11
H. Ohio 12
1. Ohio Republican Party v. Brunner 12
2. Project Vote v. Madison County Board of Elections 12
I. Pennsylvania 12
1. Moyer v. Cortes 12
2. NAACP-SCP v. Cortes 12
J. Virginia 12
1. McCain-Palin 2008 v. Cunningham 12
2. Virginia NAACP v. Kaine 13
K. Wisconsin 13
1. Van Hollen v. Government Accountability Board 13
V. Post–Election Day Litigation in 2008 13
A. Alabama 13
1. United States v. Alabama 13
B. Ohio 14
1. Skaggs v. Brunner 14
2. Ray v. Franklin County Board of Elections 14
C. Texas 14
1. Texas Democratic Party v. Bettencourt 14
D. Virginia 14
VI. Observations about Litigation (or Its Absence) and
the 2008 Election Cycle 15
Notes 16
C H A P T E R TWO
Florida Election Procedural and Legal Changes
from 2000 to 2008: A Primer 19
KENNETH A. TINKLER
I. Legislative and Technological Election Changes after 2000 19
A. Florida Election Reform Act of 2001 19
B. Post-2001 Procedural and Technological Changes 20
C. The Help America Vote Act of 2002 and Its Impact on Florida 22
D. Post-2006 Technology Changes 22
II. Voting Process Changes through 2008 23
A. The Rise of Early Voting 23
B. Provisional Ballots and Voter Challenges 25
C. Voter Rights and Responsibilities 26
D. Recounts, Then and Now 27
III. Florida’s Voter Identification Laws 27
A. Voter Identification Requirements 27
B. No Match, No Vote 28
IV. The Increased Role of Political Parties in Florida Elections 29
A. Voter Protection 29
V. The Future 29
A. What Did and Did Not Work in 2008 29
B. Future Legislation 30
Notes 31
C H A P T E R T H R E E
Voting and Registration Technology Issues:
Lessons from 2008 37
CANDICE HOKE AND DAVID JEFFERSON
I. The 2008 Performance Record of Digital Voting Systems 39
A. The Scientific Assessments of Voting Systems 39
B. The Voting Systems’ 2008 Performance Record 41
II. The Voting Technology Regulatory Regimes: Pre-HAVA and HAVA 43
A. Pre-HAVA 44
B. HAVA’s Authority for Federal Voting System Standards and Testing 45
III. The 2008 Record of Statewide Voter-Registration Databases 49
IV. Conclusion 54
Notes 55
C H A P T E R F O U R
Electoral Access, Political Participation,
and Voter Protection in the 2008 Election 65
JAMES THOMAS TUCKER
I. Postmortem on the 2008 Presidential Election 65
A. Waiting Lines and Other Election Day Problems 66
B. The Positive Impact of Early Voting 68
C. Registration and Voting Fraud 69
D. Student Voters Told to Rock the Vote Somewhere Else 70
E. Lose Your Home, Lose Your Vote 72
II. Efforts to Suppress Voter Participation or Mislead Voters 73
A. Threats, Intimidation, and Harassment 74
B. Deceptive Practices 77
C. Robocalls 80
III. The Future of Vote Dilution Claims 83
Notes 86
C H A P T E R F I V E
Which Branch Decides How Much Discrimination
Is Tolerable? The Voting Rights Act’s Preclearance Provision
Heads Back to the Supreme Court in Northwest Austin
Municipal Utility District Number One v. Holder 97
DEBO P. ADEGBILE
I. The Constitutional and Symbolic Significance of
the Reconstruction Amendments 98
II. What Is Section 5 and Why Is It the Focus of Constitutional Attention? 99
III. The MUD’s Attack of Section 5 101
IV. The Three-Judge Court Rejects the MUD’s Attacks on
the Preclearance Provision and Examines the Congressional Record 102
V. The MUD Case on Appeal 104
VI. Conclusion 106
Notes 107