“Stanford And Dartmouth Urge Voters To ‘Ignore’ Their Controversial Mailer”


In an unusual “open letter to the voters and citizens of Montana,” the presidents of Dartmouth College and Stanford University urged Montana voters Tuesday to ignore a mailer sent recently by their researchers that caused considerable controversy in the run up the November election. They also apologized for the “confusion and concern” the mailer caused.



“Georgia judge declines to intervene in ‘missing’ voters lawsuit”


A Georgia judge declined Tuesday to intervene in Georgia’s voter registration process, letting stand existing measures by state and local election officials to help applicants ahead of the Nov. 4 election.

The decision came after a two-hour hearing Friday, during which Fulton County Superior Court Judge Christopher Brasher seemed skeptical of a lawsuit that sought what he called an “extraordinary legal remedy.”

You can read the judge’s 14-page opinion here.


“The Intratextual Independent ‘Legislature’ and the Elections Clause”

Michael Morley has posted this draft on SSRN.  Here is the abstract:

Article I’s Elections Clause and Article II’s Presidential Electors Clause confer authority to regulate congressional and presidential elections, respectively, specifically to State “legislatures,” rather than to States as a whole. In the pending case Arizona State Legislature v. Arizona Independent Redistricting Commission, the U.S. Supreme Court will decide whether the Elections Clause allows a State to remove the authority to draw congressional districts from its legislature, and confer it instead in an independent commission. Its ruling will have tremendous ramifications not only for similar redistricting commissions across the nation, but for a wide range of other doctrines, principles, and protections that stem from the Elections Clause and Presidential Electors Clause.

Intratextualism is a powerful technique for interpreting the Constitution that can yield valuable insights into the proper meaning of the term “Legislature,” as it appears in both provisions. A careful intratextual analysis of the Constitution as a whole reveals that the term “Legislature” is best understood as referring to the entity within each state comprised of representatives that has the general authority to pass laws, and excludes executive officials, judges, and independent agencies or commissions. Such an interpretation is bolstered by both the original understanding of the term “Legislature,” as well as the “independent state legislature” doctrine, which recognized that the U.S. Constitution directly confers authority to regulate federal elections directly and specifically on institutional legislatures, and a State constitution may not impose substantive limits on the scope of that authority. Thus, to the extent laws establishing independent commissions purport to prohibit State legislatures from regulating federal elections or drawing congressional districts, they are unconstitutional under the Elections Clause.


“Shakeup at Organizing for Action”

Politico: “Organizing for Action is getting the jump on a post-midterms shake-up, with staff changes and the beginning of a reconstituting that will begin President Barack Obama’s shift toward thinking about his role after leaving office….OFA is winding down its advocacy and plans to become part of the Obama library and foundation after Obama leaves office, according to sources.”


“FairVote Joins Voting Rights Case in Washington to Promote Fair Representation”

FairVote wants to use “fair representation voting at-large”—which I think must be cumulative voting with a fancy name—to remedy a Voting Rights Act violation.

UPDATE: In this context, Fairvote is supporting Yakima’s efforts to use “limited voting.”  FairVote uses the term “fair representation voting’” for a variety of alternative voting mechanisms.


“UT/TT Poll: Texans Favor Voter ID by 3-to-1 Margin”

Texas Tribune:  ”Two-thirds of registered Texas voters have a favorable opinion of the state’s voter photo ID law, and more than half have a “very favorable” view, according to the latest University of Texas/Texas Tribune Poll….While 19 percent of Democrats have a ‘very favorable’ opinion of the law, 51 percent of independents and 85 percent of Republicans do.”


“Club for Growth to Petition Supreme Court To Rule on Wisconsin Campaign Coordination”

Bloomberg BNA: “Following rejection of petition for an en banc review by the U.S. Court of Appeals for the Seventh Circuit, the Wisconsin Club for Growth will ask the Supreme Court to overturn an appellate panel decision reaffirming the state government’s authority to regulate coordination between political campaigns and purportedly independent outside groups (O’Keefe v. Chisholm,, 7th Cir., , No. 14-1822, , en banc review denied 10/23/14; 3854 Money & Politics Report, 9/26/14)).”


“McCutcheon Calls for a National Referendum on Campaign Finance (Literally)”

Andrew Tutt has posted this draft on SSRN (Columbia Law Review Sidebar). Here is the abstract:

In McCutcheon v. FEC, the Supreme Court tightened First Amendment limits on Congress’s authority to regulate campaign financing. McCutcheon ostensibly left in place the old regime that allows campaign-finance regulation so long as it strikes at quid pro quo corruption or its appearance. But two recurring themes in the McCutcheon opinion indicate that this standard will from hereon be more difficult to meet. One is that campaign-finance laws prevent individuals from participating meaningfully in democratic change. The second is that Congress cannot be trusted to pass campaign-finance laws because such laws are tainted by self-interest. As Chief Justice Roberts wrote in McCutcheon’s plurality opinion, “[T]hose who govern should be the last people to help decide who should govern.” This Essay argues that these two themes actually chart a way forward for those who wish to see greater regulation of campaign financing. If Congress were to hold a national referendum to reenact the limits the Supreme Court struck down in McCutcheon, those limits would be constitutional even though the same limits passed by Congress were not. The reason is that limits backed by a popular vote would satisfy McCutcheon’s concerns with congressional self-dealing while vindicating directly its concern with maximizing each individual’s opportunity to take an active part in democratic self-governance. Moreover, an answer from the People themselves to the most relevant question in any campaign-finance case — whether a practice gives rise to the appearance of corruption — is the best way one could imagine for discovering whether it does so. One might say that McCutcheon literally calls for a referendum on campaign finance. This Essay explores this notion in depth and closes by assessing the constitutionality and practicality of the referendum option.


“CMD Files IRS Complaint Against Wisconsin Club for Growth”

Release: “The Center for Media and Democracy has filed a complaint with the Internal Revenue Service alleging that the Wisconsin Club for Growth lied to the IRS in 2011 and 2012, violated its tax-exempt status by operating as a political committee, and operated primarily for the private partisan benefit of the Republican Party, rather than for any sort of ‘social welfare.’”


Judge Kopf Continues to Make Inappropriate Remarks; Time for Him to Retire

Federal judge Richard Kopf, who told the Supreme Court to shut the fuck up, commented favorably on the ample chest of a lawyer in his courtroom, and attacked Professor Bainbridge and Dahlia Lithwick with intemperate remarks, now says I’m a “highbrow” scold who has “never made a living trying cases.” He writes:

In my post, The evisceration of Dahlia Lithwick, I referred to Ms.Lithwick as being “very bright.” Among a lot of other things, I also added: ” Lithwick can be a tiresome scold. Taking her down several begs is a good thing if you care about intellectual rigor and the national legal commentariat.” I “pimped” Scott Greenfield’s incisive critique off Lithwick’s comparison of the Court’s First Amendment jurisprudence to other Constitutional values that she evidently holds more dear.

Rick Hansen, a law professor and blogger, responded with a post entitled, “Judge Kopf Calls Dahlia Lithwick a ‘Tiresome Scold.‘” Professor Hansen’s first sentence reads this way “Keeping it classyas usual. (Morehere.).” Subsequently,  Michelle Olsen ‏@AppellateDaily chimed in, writing, among other things, “To show my cards, I find honest criticism (à la @ScottGreenfield) helpful, rooting for ‘evisceration’ of a ‘scold,” weird.’” In response, Professor Hansen wrote, “Not just weird, but sexist” and in a second tweet, “But we should expect this from judge who writes about ‘ample chests’ of lawyers arguing before him.”

I confess to taking guilty pleasure in annoying law professors who have never made their living trying cases and who dictate manners to others when a fellow “highbrow” is grilled. Now, I both admit and realize that “guilty pleasure” is the “distillation of all the worst qualities of the middlebrow.” But, unlike Professor Hansen, I have never thought of myself otherwise.


It would have been nice if he spelled my name right or knew that I practiced (and occasionally continue to practice) law, most recently on the team winning this appeal against Lisa Kudrow. If anything I’m one of those professors who lives too much in the real world and not enough in the realm of high theory. But that’s beside’s the point.

His intemperate rantings on his blog demean the federal judiciary and indicate that the judge has lost his judgment. It is time for him to retire.

UPDATE: Apparently drafting appellate briefs and engaging in oral argument (I’ve argued before the Ninth Circuit and CA Supreme Court, for example) don’t count as real lawyering to Judge Kopf. 


“A Call to Expose the Unnecessary Secrets of the Supreme Court; One justice publicly announced an error in her dissent, but such candor is rare.”

I have written this oped for the National Law Journal.  It begins:

Justice Ruth Bader Ginsburg of the U.S. Supreme Court made news twice with her six-page dissent to a court order allowing Texas to implement a restrictive voter identification law that a lower federal court found racially discriminatory.

The first time the justice made news by releasing her fiery dissent at 5 a.m. on a Saturday morning after having worked on it throughout the night. The second time was when she corrected a minor error in her opinion (which I had flagged on the Election Law Blog) and announced through the Supreme Court’s press office that she had made such a change.

Justices commonly correct and change opinions after release. But Ginsburg’s announcement of a correction was so rare that The National Law Journal, The New York Times and National Public Radioran stories about it. For the most part, as New York Times reporter Adam Liptak has detailed, the court simply makes changes to published opinions with no announcement, sometimes months or years after the original publication.

The Supreme Court has no excuse for being so opaque about its practices. There is a whole set of ways that it could improve on its transparency.


About That Monkey Cage Item on Non-Citizen Voting, Calm Down

On Friday I linked to an item on the Washington Post’s Monkey Cage blog by Jesse Richman and David Earnest with some provocative findings on the extent of non-citizen voting. The  post was based on this forthcoming article in Electoral Studies.

When I initially posted, the link, I wrote that I would be interested in hearing about the methodology behind this report, because it seems to find a much higher rate of non-citizen voting than any previous evidence I have seen, and the quick description of the piece made me wonder if the authors were making some leaps with their inferences from the evidence.

Conservatives pounced on the report (it even got a link from the Drudge Report) as “proof” of voter fraud and and indication that conservatives were right all along about a voter fraud epidemic. The extra bonus was that the report was appearing in the “liberal” Washington Post! Well here’s a call to slow down.  A few points.

1. I’m really glad the authors did this study and think the issue merits further investigation investigation. As I indicated in my book, The Voting Wars, non-citizen voting is a real, if relatively small, problem. I wrote in a 2012 New York Times oped,

While Republicans have been more to blame than Democrats, partisanship runs both ways. Democrats reflexively oppose efforts to deal with ineligible voters casting ballots, likely out of fear that the new requirements will make it harder for casual voters supporting Democrats to cast a ballot. They have adamantly opposed the efforts of Florida and other states where Republican election officials want to remove noncitizens from the voting rolls. Noncitizen voting is a real, if small, problem: a Congressional investigation found that some noncitizens voted in the close 1996 House race in California between Robert K. Dornan, a Republican, and Loretta Sanchez, a Democrat, but not enough to affect the outcome. Unlike impersonation fraud, noncitizen voting cannot be dismissed as a Republican fantasy….Florida should hold off on its plan to remove noncitizens until the off-season. Purging the rolls now risks removing many more eligible citizensthan noncitizens.

2. This was not a story vetted by the Washington Post.  This was not even the regular Monkey Cage bloggers. These were guest bloggers who were (perfectly appropriately) guest blogging about their new article in Electoral Studies. So let’s be careful in terms of who is making what claims.

3. The Electoral Studies piece went through peer review. That’s an indication that someone looked at the authors’ methodology to make sure it passed muster. But peer review is not perfect.  I have heard from a number of political scientists who have raised issues about a number of the assumptions and statistics used in the article. It is not clear to me from what I have heard so far that all of the article’s conclusions (or any of them) will withstand full academic scrutiny.  We’ll have a better sense in a year or two—that’s normal with contested claims made in political science.  There can be no immediate confirmation or rejection of these studies. Caution is in order.

4. Even if the authors’ methodology and conclusions are correct, that does not mean that there is a voter fraud epidemic. It also doesn’t mean that voter id makes sense. To begin with, the authors seem to think voter id would not help.  In a number of states, for example, non-citizens can get drivers’ licenses which can be used for ID.  To handle the problem of non-citizen voting, the key is to confirm citizenship at the time of registration. Some states are doing that, and KS and AZ are fighting the federal government in the Kobach v. EAC case over how this may be done.

5. Checking citizenship before registering voters is not costless. Aside from the costs to the state of such a program and the costs to voters to provide proof of citizenship, such a requirement no doubt disenfranchises eligible voters. The question is whether the number of non-citizens voting justifies the risk of eligible voters who will not be able to (easily or affordably) produce the documentary proof of citizenship needed to vote. That is a balance I suspect conservatives and liberals would strike differently.

6. We could solve this problem and more if we moved to a national voter identification program run by the federal government which paid for all the costs associated with establishing identity and citizenship. I’d couple national voter id, with a unique voter id number and universal voter registration proactively implemented by the federal government. Voters could provide their thumb print if they wanted and use that to verify ID instead of using their actual card.  I don’t expect we will see this program in my lifetime, but I believe it is the sound way to move beyond many of these fights.

UPDATE: More from Paul Gronke.