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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)
“Stevens: Rationale for Bush v. Gore was ‘unacceptable’; The former Supreme Court justice speaks out on John Roberts and the case that decided the 2000 election.”
“Move to Defend: The Case against the Constitutional Amendments Seeking to Overturn Citizens United”
John Samples has posted this draft on SSRN. Here is the abstract:
Three years ago the U.S. Supreme Court decided the case of Citizens United v. Federal Election Commission. It found that Congress lacked the power to prohibit independent spending on electoral speech by corporations. A later lower-court decision, SpeechNow v. Federal Election Commission, applied Citizens United to such spending and related fundraising by individuals. Concerns about the putative political and electoral consequences of the Citizens United decision have fostered several proposals to amend the Constitution. Most simply propose giving Congress unchecked new power over spending on political speech, power that will be certainly abused. The old and new public purposes cited for restricting political spending and speech (preventing corruption, restoring equality, and others) are not persuasive in general and do not justify the breadth of power granted under these amendments.
Republicans in the Ohio Legislature are pushing a plan that could cost the state’s public universities millions of dollars if they provide students with documents to help them register to vote. Backers of the bill describe it as intended to resolve discrepancies between residency requirements for tuition and voter registration, while Democrats and other opponents argue it is a blatant attempt at voter suppression in a crucial swing state.
“What the bill would do is penalize public universities for providing their students with the documents they need to vote,” Daniel Tokaji, a professor and election law expert at Ohio State University told TPM. “It’s a transparent effort at vote suppression — about the most blatant and shameful we’ve seen in this state, which is saying quite a lot.”
Gary Bass and Beth Kingsley have written this oped for the Chronicle of Philanthropy.
“Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act”
Steve Ansolabehere, Nate Persily, and Charles Stewart have written this article for the Harvard Law Review Forum. Here is the conclusion:
Reasonable people can disagree about the relevance of the 2012 election or even racially polarized voting patterns to the constitutionality of the coverage formula for section 5 of the Voting Rights Act. Indeed, we view our findings more as a response to the notion that the election and reelection of an African American President settles the constitutional question in favor of the VRA’s detractors. If anything, the opposite is true. To be sure, the coverage formula does not capture every racially polarized jurisdiction, nor does every county covered by section 5 outrank every noncovered county on this score. However, the stark race-based differences in voting patterns between the covered and noncovered jurisdictions taken as a whole demonstrate the coverage formula’s continuing relevance.
In particular, for those looking for a way to distinguish the covered jurisdictions from the noncovered jurisdictions, and to do so without running afoul of the “elephant whistle” problem, differential rates of racially polarized voting provide an ideal metric. There can be no doubt that the covered jurisdictions differ, as a group, from the noncovered jurisdictions in their rates of racially polarized voting. There can also be no doubt that voting in the covered jurisdictions as a whole is becoming more, not less, polarized over time.
This is a must-read, careful analysis. The question, which I first posed in 2005, is whether differences in racially polarized voting are of constitutional significance to save section 5 of the Act for the swing Justice(s) on the current Supreme Court. On that question, we likely will have to wait until the end of June.
Matea Gold, soon of WaPo, writes this article for the LA Times.
Maybe it went like this: “Oh Lord, we beseech thee to bring forth a mighty super PAC from the heavens, to rain down negative advertising upon all of my opponents. Oh let the (c)(4)s emerge from the depths of darkness, attacking my opponent with the ferocity of a wild beast lurching forth momentarily and retreating into the darkness. And let us say, amen.”
WaPo reports. [corrected link]
WaPo: “Months after the FBI began probing allegations against Sen. Robert Menendez (D-N.J.), investigators are now looking at whether someone set out to smear him while he was running for re-election last year and then ascending to his new post as chairman of the Senate Foreign Relations Committee, according to four people briefed on the inquiry.”
Important Peter Overby report for NPR.
Tea party conservatives may never fully trust Senate Minority Leader Mitch McConnell, but the Kentucky Republican was talking about the dangers of limiting political speech long before the tea party movement existed.
An expansive view of the First Amendment when it comes to political speech has been a signature issue in McConnell’s Senate career. He led the crusade against the 2002 campaign finance overhaul championed by Republican Sens. John McCain of Arizona and Russ Feingold of Wisconsin even after enactment, taking the case to the Supreme Court.
“Lois Lerner, IRS administrator at center of scandal, bows out of Western New England University commencement speech”
Lawyers for the Federal Election Commission and government contractors on Thursday argued in the U.S. Court of Appeals for the D.C. Circuit over a law that forbids the contract holders from making federal campaign donations. The merits of the case, however, took a backseat.
The panel—Senior Judge Douglas Ginsburg and judges Thomas Griffith and Karen Henderson—focused most of their time on the court’s jurisdiction to even hear the dispute.
Steven Rattner for NYT Opinionator.
Yes, yes, we are at the point that it everything has been said but not by everybody.
Here at Democracy Now!.
CRP: “Conservative nonprofits that received tax-exempt status since the beginning of 2010 and also filed election spending reports with the Federal Election Commission overwhelmed liberal groups in terms of money spent on politics, an analysis of Internal Revenue Service and FEC records shows.”
WaPo reports on 12-10 party line committee vote.
Justin Levitt has posted this draft on SSRN (Yale Law Journal Online). Here is the abstract:
In addition to its remarkable substantive impact, Section 5 of the Voting Rights Act is a provision of enormous expressive and historical importance. But the extent to which the statute is also a symbol has some unrecognized downsides. In the current Shelby County litigation, reviewing a challenge to section 5, much of the argument seems to revolve around a simulacrum of section 5, rather than the statute itself. This simulacrum is much like an editorial cartoonist’s rendering of a political figure, in which particular features take on exaggerated salience. Many elements of the simulacrum have at least the ring of truth, which helps to explain the staying power of the image. But though the cartoon version of the preclearance regime resembles the original, the exaggerated features—including preconceived notions of the obsolescence of the regime’s primary operating system, the extent to which it fosters racial essentialism, and its place within our federalist structure—distort rather than clarify our understanding of the legality of the portions of the Voting Rights Act at issue. This short Essay investigates some of the more striking elements of the section 5 simulacrum, contrasting the cartoon vision of section 5 with the more fully contextualized operation of the actual statute.
Los Angeles Lawyer on legal issues surrounding the use of songs in political campaigns.
Yet another oped with this name, this one in the New York Times by Sheila Krumholz and Robert Weinberger of CRP.
Also in the NYT opinion section, a Room for Debate section, Should 501c4′s Be Eliminated?, and an editorial, Take Politics Away from the IRS. The editorial is similar to the position I take in my Slate piece.
Some groups, including several interviewed by The Washington Post, were asked to provide names of donors or membership lists, which experts say the IRS cannot legally do. The agency also demanded names of board members, copies of meeting minutes and résumés, details of community organizing efforts and numerous other details, according to questionnaires obtained by The Post.
“It was pretty much a proctology exam through your earlobe,” said Karen L. Kenney, the coordinator for the San Fernando Valley Patriots, a tea party group in Southern California that was sent an IRS questionnaire with more than 100 questions on it.
The San Fernando group first submitted its application for nonprofit status in the fall of 2010, which was after the IRS’s Cincinnati-based “determination unit” had implemented its politically charged screening criteria. The group wrote the agency a $400 check to fast-track the process, but 19 months went by before the group heard anything, Kenney said.
Sounds like a real scandal to me, and not just a distraction from the disclosure problems which also exist as to c4s.
See here at Nonprofit Quarterly.
UPDATE: This is a very smart take on the IRS mess.
NYT: “President Obama announced Wednesday night that the acting commissioner of the Internal Revenue Service had been fired, and he pledged that his administration would cooperate with Congressional investigations into the targeting of conservative groups.”
“Center for Competitive Politics urges the Supreme Court not to defer to Congress when reviewing contribution limits”
I renew my objection. Saying that what happened to conservative groups is not a “real” scandal is a way of denigrating what the IRS has done, and I am quite sure that many of these liberal critics would have been absolutely OUTRAGED if the Bush IRS had targeted “progressive” groups for special scrutiny and sat for a very long time on their applications for tax exempt status.
“Conservative group says IRS approved non-profit status after applying with ‘liberal-sounding name’”
Melanie Sloan of CREW: “Everyone can agree it is unacceptable for the IRS to target particular organizations based on political ideology. If that’s what agents at the IRS were up to, they were wrong and there should be consequences. The real problem, however, is not that the IRS is overly aggressive but that it has sat by idly while an ever-increasing number of groups blatantly violate the laws governing 501(c)(4) organizations. Where is the outrage over that?”
NYT: “he Internal Revenue Service said Wednesday that its chief counsel did not tell Treasury superiors of I.R.S. efforts to target conservative groups for special scrutiny, nor did he participate in a 2011 meeting when the issue was discussed with the I.R.S. chief counsel’s office.”
The latest from San Diego, where I just finished testifying.
“Bailey v. Maine Commission on Governmental Ethics: Another Step Toward the End of Political Privacy”
Steve Klein has posted this draft on SSRN. Here is the abstract:
This article discusses the campaign finance disclosure regime upheld in Citizens United and gives a brief overview of how lower courts have recently expanded the Supreme Court’s reasoning, applying blanket approval to any “disclosure” regime. It then analyzes the ruling in Bailey v. Maine Commission on Governmental Ethics, and shows that it may go to such lengths as to impose campaign finance disclosure upon any political speech. Finally, this article offers a way back, with a call to restore the exacting scrutiny standard, limit the government’s “informational interest” and, at the very least, raise the financial thresholds for campaign finance law. Ultimately, any efforts at protecting political speech must begin with understanding that despite the weight of Citizens United, there are still myriad problems with federal and state campaign finance regimes.