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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
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)
Reuters: “Internal Revenue Service employees in Ohio, who singled out conservative groups applying for tax-exempt status for extra scrutiny, likely did not consider the political implications, an IRS official in Washington has told congressional investigators.”
This item appears at FairVote.
The Federal Election Commission has deadlocked on an enforcement case dating back to the 2008 presidential campaign involving allegations that a group opposed to President Obama’s election violated the law by failing to register as a political action committee, the FEC revealed June 14.The group, known as American Issues Project or AIP, was largely funded by Harold Simmons, a major donor to Republican and conservative causes. It made headlines during the 2008 race when the Obama campaign charged the group and its backers should face a criminal investigation for campaign finance violations.
You can read the Genral Counsel’s report recommending a finding of a violation here. BNA: “Documents released in the case indicated that the FEC’s three Republican commissioners voted against the recommendation in a report from the FEC general counsel’s office to pursue enforcement action. The FEC’s two Democrats voted for the counsel’s recommendations. It requires the votes of four FEC commissioners for any final legal action to be taken.”
One campaign finance attorney writes to me to claim that this will create a “mammoth loophole” by allowing 501c4 groups to manipulate the date of their “fiscal year” to avoid classifications as a political committee.
We are awaiting the Statement of Reasons to be posted by the partisan-split FEC Commissioners.
The justices put the case on a fast track today, ordering briefs by June 17 and final responses by June 18, acting state courts administrative director Judge Glenn Grant said in a statement. The move follows a lower appeals court decision yesterday that there’s no legal obstacle to holding the vote 20 days before the general election, when Christie’s on the ballot seeking a second term.
Adjusting for inflation, the figure is a mere 224% increase.
11th Circuit Rejects Challenge to Disclosure and Disclaimer Requirements for Groups Running Ads About Ballot Measures
See Worley v. Florida Secretary of State, in line with the great bulk of authority in this area.
From the Center for Responsive Politics:
A special U.S. Senate election to replace the late Democratic Sen. Frank Lautenberg can be held in October, as it was scheduled by Republican Gov. Chris Christie, a state court ruled Thursday.
The ruling could be appealed. And while it keeps an election on course it does not seem likely to chill criticism of the popular governor for how he chose to replace Lautenberg, the Senate’s oldest member, who died last week at age 89.
I have posted the opinion here.
Here, at On Brief.
Fantastic Brookings event July 1 with a great line-up. So sorry I had to decline an invitation to this because of a conflict. At least I’ll be able to watch the webcast.
This item appears at Facing South.
“Colorado Secretary of State Scott Gessler wrong to use state funds for trip, ethics commission rules”
Eighth Circuit Upholds Iowa Corporate Campaign Contribution Ban, Upholds Some, Strikes Down Other Disclosure Rules As Applied to Certain Groups
You can read the opinion in Iowa Right to Life, Inc. v. Tooker at this link. As to the disclosure rules struck down, the court held that certain reporting requirements could not be applied to groups who do not have as their major purpose the influencing of elections.
More from On Brief, Iowa’s Appellate Blog.
“Police raid Miami Commissioner Francis Suarez’s mayoral campaign in absentee ballot fraud investigation”
“It doesn’t matter who wins. It matters that they win by a lot.”
….here is some of my writing about the case if you want to get up to speed:
Who Controls Voting Rights? (Reuters)
And for those who wish to go back in time: My first writing on the issues in the Shelby County case was in 2005, in writing edited by Chris Geidner: Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee v. Lane. My 2006 testimony before the Senate Judiciary Committee on the serious constitutional questions with renewing the act without making any changes is here. My article analyzing what was likely to happen after the Supreme Court raised constitutional questions in the NAMDNO case appeared in the 2010 Supreme Court Review (contrasting NAMUDNO with Citizens United) in Constitutional Avoidance and Anti-Avoidance by the Roberts Court.
House Ways and Means Committee Chairman Dave Camp (R-Mich.) June 12 said the Internal Revenue Service’s targeting of tea party and other conservative groups applying for tax exemptions did not originate in Cincinnati.Where the targeting originated has become an increasing point of contention among lawmakers interviewing IRS employees for their involvement in inappropriately lumping together the groups’ applications for special scrutiny by name.Camp said he knows the targeting did not begin in Cincinnati “because of the testimony we’ve gotten.”
Lisa Gilbert writes for Yahoo!.
Linda Greenhouse on conservatives fretting about Justices Kennedy or Scalia leaving the Court.
Back in February, I talked about the flip side of this, After Scalia:Don’t give up on campaign finance reform, however hopeless it seems now.
Greg Colvin sends along this response by email.
For lawmakers in Washington, the daily chase for money can begin with a breakfast fundraiser in the side room of a Washington restaurant.
At noon, there might be a $500-per-plate lunch with lobbyists in a Capitol Hill town house. The day might wrap up in an arena sky box in downtown Washington, watching a basketball game with donors.
In between, there is “call time” – up to four or five hours a day for lawmakers in tough re-election campaigns – in telemarketing-style cubicles a few hundred yards from the Capitol. The call centers, set up by the Democratic and Republican parties, allow lawmakers to chase the checks that fuel campaigns without violating rules that ban fundraising from their offices.
A Washington federal judge today ordered federal prosecutors to disclose more details about a past probe into alleged misconduct by U.S. Rep. Don Young (R-Alaska) or prepare to better justify the continued secrecy. She cited a previous decision finding the congressman’s privacy interests were “much diminished.”
The Center for Competitive Politics (CCP) petitioned the US Supreme Court for a writ of certiorari late Tuesday in Corsi v. Ohio Election Commission. The petition challenges a recent decision by the Ohio Court of Appeals that upheld the Ohio Election Commission’s (OEC) interpretation of the major purpose requirement in determining whether or not a group must register as a political action committee (PAC).
During Sen. Elizabeth Warren’s race last year against incumbent GOP Sen. Scott Brown, the League of Conservation Voters spent more than $1 million on “independent expenditures” that either advocated for Warren’s election or Brown’s defeat, including mass mailings and paid canvassers.
The 501(c)(4) nonprofit’s treasury, as well as its related political action committee and super PAC, accounted for the spending, which helped push Warren to victory in a race that ranked among the League’s top electoral priorities. The League also bundled more than $100,000 in earmarked campaign contributions for Warren, federal records show.
Now tonight in Washington, D.C., supporters of the League — one of the nation’s most politically active environmental nonprofits — will gather for a fundraising gala during which Warren, a Democrat, is scheduled to address the crowd.
The event is the latest illustration of how politicians and special interest groups, which by law can’t coordinate election spending, nevertheless forge mutually beneficial ties.
“An In-Depth Report on California’s First-Ever Citizen Redistricting Commission – ‘When the People Draw the Lines’”
From the League of Women Voters:
In the past decade, California voters have worked to increase their voice in the democratic process through passing laws that wrestled power from California legislators. Through Propositions 11 and 20, Californians took a stand and stated that they should be the ones leading the process for drawing Assembly, Congressional and Senate district lines.
In 2010, this line drawing process advanced when the California Bureau of State Audits (BSA) tasked a new California Citizens Redistricting Commission (CRC) with guiding an independent redistricting process. The 14-person commission accomplished the complex task of redrawing 177 districts in only eight months.
A new report “When the People Draw the Lines,” finds that California’s first citizen-led redistricting commission successfully democratized redistricting in the state. In fact, among the estimated 1/3 of the voters who were familiar with the work of the commission, over 66% of the public approved of the CRC district maps. [Note: This sentence has been updated by the LWV.]
The report, commissioned by the League of Women Voters of California in partnership with The James Irvine Foundation, found that the commission made a concerted effort to make the process more democratic and nonpartisan. In particular, the commission effectively gathered input from Californians through developing a statewide campaign with public meetings, open databases and online engagement.
Listen to the 6/12 media teleconference (coming soon)
Derfner and Hebert: The Voting Rights Act: Does the City of Boerne case or the “congruence and proportionality” test have anything to do with the Voting Rights Act?
Armand Derfner and Gerry Hebert have written this guest post (available as a pdf [CORRECTED FILE]) for ELB, which begins:
Much of the debate in the pending Shelby County case centers on whether the remedy in Section 5 of the Voting Rights Act is “congruent and proportional” to the evidence of violations, as the Supreme Court first began requiring in 1997 in City of Boerne v. Flores. However, simply reading City of Boerne and the cases following it suggests that this is not the right test for evaluating the constitutionality of Section 5, and that applying it would be wholly without precedent.
That may surprise some people who believe – mistakenly – that the Supreme Court has already held that Section 5 must meet a test of “congruence and proportionality.” One such surprised person would be Chief Justice Roberts, who thought (Tr. Oral Arg. 56) the Court applied that test in the 2009 case of N.W. Austin MUD v. Holder. One party in that case did say that test should be applied, but the Court specifically said it wouldn’t address the issue and decided the case on other grounds
The war of words between the two leaders of the House Oversight and Government Reform Committee continued June 11, with Chairman Darrell Issa (R-Calif.) accusing ranking member Rep. Elijah Cummings (D-Md.) of obstructing the committee’s efforts to fully investigate IRS’s handling of applications for tax exemption from conservative groups….Cummings responded in a statement June 11 by saying that Issa was going back on his word to release the full transcripts. “Now that this new evidence directly contradicts the Chairman’s unsubstantiated accusations, it appears that he is suddenly reversing himself and refusing to let the American people see the full story,” Cummings said.
NYT: “Mayor Michael R. Bloomberg, in a sharp escalation in the battle over gun control, is seeking to punish Democratic senators by taking away the one thing they most need from New Yorkers: money.”
State supreme court justices are favoring the corporate interests that finance their election campaigns, a comprehensive new study concludes.
With more judicial elections now awash in dollars, the study of several thousand court decisions found a relationship between business-affiliated contributions and how justices voted. The more business money a supreme court justice has received, the more likely she or he is to support business litigants, according to the yearlong study by the American Constitution Society, a liberal advocacy group.
“We have reason to be worried,” study author Joanna Shepherd said Tuesday. “Business groups tend to spend far more on judicial elections than any other interest group.”