“McDaniel lawyer: Expect runoff challenge within 10 days”

Clarion Ledger:

Tyner said illegal votes “of all types” including absentees, affidavits, vote buying and crossovers — people who improperly voted in the June 3 Democratic primary then again in the GOP runoff — have been found. He said that when it comes out, “you’re going to be astonished.”

But he said he is not going to present specific evidence until a challenge is filed or try the case in the media because, “We’re going to be mature about this.” He said that when the challenge is filed, the campaign will present the evidence to the public and to the U.S. attorney, the Federal Election Commission and state attorney general’s office. This drew applause from about 50 McDaniel supporters gathered at the press conference outside Tyner’s Jackson law office.

“The $1 million question: What did we find?” Tyner said. “We found a lot.”

Tyner said the campaign has found “votes being bought, ballots being stuffed.”


“The massive difference in how Democrats and Republicans raise money”

The Fix: “You probably have a preconceived notion of where the political parties raise their money. Republicans get lots of donations from wealthy individuals and corporate interests; Democrats get money from less rich individuals and a somewhat overlapping set of corporate interests. Well, we have news for you: That perception is completely correct. At least, that is, for the parties’ Governors Associations.”

Interesting graphics too.


“STFU” Judge Tells Professor Bainbridge: “FUCK”

This is really out of control. As I suggested earlier, it is time for the good judge to retire or stop blogging. I am worried about his judgment at this point, and I think he has demeaned his office. (And this of course has nothing to do with his positions on Hobby Lobby.  Mine are probably closer to the judge’s than to Professor Bainbridge’s.)

Professor Bainbridge responds.


2014 Supplement to The Law of Democracy Available for Download

Here is the Foundation Press announcement, with active links:

2014 Supplement to The Law of Democracy

(4th ed.)

Samuel Issacharoff, NYU
Pamela S. Karlan, Stanford
Richard H. Pildes, NYU

Casebook ISBN 9781599419350
Teacher’s Manual ISBN 9781599419367

The 2014 Update Memo to The Law of Democracy, Fourth Edition is now available for download.

Download the Update Memo.

About the Casebook:
This text provides a systematic description of the legal construction of American democracy. Much of this edition’s revision consists of making note material more concise and reducing the coverage of issues that have become less important as the frontiers of the field moved in new directions. This edition covers the historical development of the individual right to vote; current struggles over racial gerrymandering; the relationship of the state to political parties; the constitutional and policy issues surrounding campaign-finance reform; and the tension between majority rule and fair representation of minorities in democratic bodies. (See more…)

Professors who would like to review a print copy of this title may request a complimentary copy by contacting their Foundation Press Account Manager at accountmanager@westacademic.com.



About Those Pro-Cochran Super PACs in #MSSEN

HuffPo: “Sen. Thad Cochran’s (R-Miss.) appeal to African-American voters in his winning primary election runoff last month was funded entirely by a super PAC supporting his campaign. According to a report filed with the Federal Election Commission on Tuesday, a super PAC called All Citizens for Mississippi received all $144,685 of its funds from the Mississippi Conservatives super PAC run by Henry Barbour, a lobbyist and nephew to former Mississippi Gov. Haley Barbour (R). Bishop Ronnie Crudup of New Horizon Church in Jackson, Mississippi, runs All Citizens for Mississippi. He said previously that he had raised the super PAC’s money from other sources.”

USA Today: “A super PAC that encouraged blacks and Democrats to vote for Republican Sen. Thad Cochran in last month’s runoff election in Mississippi received its funds from a super PAC tied to Cochran’s biggest backers, new filings show.”


“Exclusive: After Subpoenas in Walker Criminal Probe, WI GOP Sought to Quietly Change Law”

Brendan Fischer:

New documents indicate that just weeks after the first subpoenas were issued in Wisconsin’s “John Doe” criminal campaign finance probe in October 2013, senate Republicans had begun working to change state law to legalize the activities under investigation.

Legislative Republicans surprised many in the state in March of 2014 when they tried to rush Senate Bill 654 through the legislature to explicitly carve-out an exception to the state’s campaign finance statutes for so-called “issue ads,” those thinly-veiled election messages that stop short of telling viewers to vote for or against a candidate.

The John Doe investigation was never mentioned during testimony on SB 654 , even among the bill’s opponents.


“The Invention of Courts”

This new issue of Dædalus looks interesting:

The Invention of Courts

Published by MIT Press, Cambridge, MA, 2014
Order from the Publisher

Table of Contents

Introduction: The Invention of Courts

Linda Greenhouse

Reinventing Courts as Democratic Institutions

Judith Resnik

State Courts: Enabling Access

Jonathan Lippman

When Legal Representation is Deficient: The Challenge of Immigration Cases for the Courts

Robert A. Katzmann

Gideon’s Problematic Promises

Carol S. Steiker

Uncommon Law: America’s Excessive Criminal Law & Our Common-Law Origins

Jonathan Simon

Justice for the Masses? Aggregate Litigation & Its Alternatives

Deborah R. Hensler

Innovating to Improve Access: Changing the Way Courts Regulate Legal Markets

Gillian K. Hadfield

Trusting the Courts: Redressing the State Court Funding Crisis

Michael J. Graetz

Our Informationally Disabled Courts

Frederick Schauer

The Continuing Decline & Displacement of Trials in American Courts

Marc Galanter and Angela M. Frozena

Courting Ignorance: Why We Know So Little About Our Most Important Courts

Stephen C. Yeazell

The Courts in American Public Culture

Susan S. Silbey

(Anti) Canonizing Courts

Jamal Greene

Justice & Memory: South Africa’s Constitutional Court

Kate O’Regan

“Party Polarization and Campaign Finance”

New paper from Tom Mann and Tony Corrado.  Here is the abstract:

There is a lively debate today over whether or not campaign finance reforms have weakened the role of political parties in campaigns. This seems an odd argument in an era of historically high levels of party loyalty — on roll calls in Congress and voting in the electorate. Are parties too strong and unified or too weak and fragmented? Have they been marginalized in the financing of elections or is their role at least as strong as it has ever been? Does the party role in campaign finance (weak or strong) materially shape the capacity to govern?

In addition, the increasing involvement in presidential and congressional campaigns of large donors – especially through Super PACs and politically-active nonprofit organizations – has raised serious concerns about whether the super-wealthy are buying American democracy. Ideologically-based outside groups financed by wealthy donors appear to be sharpening partisan differences and resisting efforts to forge agreement across parties. Many reformers have advocated steps to increase the number of small donors to balance the influence of the wealthy. But some scholars have found evidence suggesting that small donors are more polarizing than large donors. Can that be true? If so, are there channels other than the ideological positioning of the parties through which small donors might play a more constructive role in our democracy?

In this paper, Thomas Mann and Anthony Corrado attempt to shed light on both of these disputed features of our campaign finance system and then assess whether campaign finance reform offers promise for reducing polarization and strengthening American democracy. They conclude that not only is campaign finance reform a weak tool for depolarizing American political parties, but some break in the party wars is probably a prerequisite to any serious pushback to the broader deregulation of campaign finance now underway.


“Taking the Initiative: How to Save Direct Democracy”

Jessica Levinson has posted this draft of SSRN (forthcoming, Lewis and Clark Law Review).  Here is the abstract:

In Meyer v. Grant a unanimous Supreme Court dealt a grievous blow to the most popular form of direct democracy – the ballot initiative process. The ballot initiative process allows average citizens to stand on the same footing as their lawmakers and directly enact legislation. It has failed to serve its purpose of guarding against the destructive influence of moneyed interests on lawmakers. Due to the Court’s decision in Meyer, moneyed interests are now free to buy access to the electoral ballot. The ballot initiative process has been turned on its head.

In this Article I first focus on the Court’s failings in Meyer, where the Court overturned a prohibition on the payment of petition circulators on First Amendment grounds. Next, I explain how a shift in the Court’s approach would allow the ballot initiative process to serve its original function. The Court should have applied its candidate ballot access jurisprudence, not its campaign finance case law, to analyze the restriction at issue in Meyer. Once properly viewed through the correct analytical lens it is clear that the government has the power to regulate access to electoral ballots by prohibiting the payment of petition circulators. The practical ramifications of this analytical shift are far-reaching, namely wrestling the ballot initiative process from the destructive influence of special interest groups over legislatures and providing grass roots groups with lawmaking power.


“Hobbled IRS can’t stem ‘dark money’ flow; Mystery political spending to continue unabated through midterm elections”

Six month CPI investigation:

The tea party scandal, combined with Congress systematically stripping the IRS of resources and clout over decades, has led to an exempt organizations division that has all but quit regulating politically active nonprofits in any consistent, demonstrable way, a six-month Center for Public Integrity investigation reveals.

The investigation, which involved a review of thousands of pages of IRS documents and interviews with more than two dozen current and former IRS employees and administrators, finds the agency’s nonprofit regulation division has:

  • Bled 14 percent of its staff positions during the past two decades while the number of nonprofits it regulates has grown by more than 40 percent.

  • Scaled back inquiries, as the number of nonprofit group tax returns investigated recently fell by 10 percent, from 11,699 in 2011 to 10,575 last year. Applications for “social welfare” nonprofit status jumped 27 percent from 1,777 to 2,253 during the same time.

  • Reduced the number of denials for exempt status for social welfare nonprofits from nearly 4 percent during the early 1980s to less than a quarter-percent in 2013.

  • Softened, tabled or reversed course on at least a dozen proposed policy positions or enforcement plans after criticism from politicians and lobbyists.


“Obama admin to join voting rights cases in Ohio and Wisconsin”

MSNBC: “It’s not clear from Holder’s comments whether the Justice Department intends simply to file amicus briefs in support of the laws’ challengers, or whether it plans to intervene as a new plaintiff—and assign government lawyers to the cases—as it did when it challenged North Carolina’s sweeping voting law last year. It might be more likely to choose the latter route in Ohio, where there hasn’t yet been a ruling on the merits of the recent cuts, than in Wisconsin, where a court has already struck down the voter ID law.”


“Rep Jim Jordan wants information on computer crash of federal lawyer who campaigned for Obama at work”

Cleveland Plain Dealer: “Theorizing that the Federal Election Commission may have destroyed evidence that could be used against a former FEC attorney who admitted campaigning for President Obama’s re-election while on the job, Rep. Jim Jordan wants the agency to provide his investigative subcommittee with information on how it happened to recycle a hard drive that belonged to the lawyer, April Sands.”


Top Ten Law Faculty in Election Law by Scholarly Impact, 2009-2013

Brian Leiter conducted a recent scholarly survey aimed at identifying the “ten most highly cited faculty for the period 2009 through 2013 in 11 major areas of legal scholarship: Commercial Law/Contracts/Bankruptcy; Corporate Law/Securities Regulation; Criminal Law & Procedure; Intellectual Property/Cyberlaw; International Law; Law & Economics; Law & Philosophy; Law & Social Science (excl. economics); Legal History; Public Law; and Tax. There is also an overall list of the ten most cited faculty regardless of area.”

I thought it might be useful to conduct a similar survey of election law scholars teaching in law schools. I used similar methodology to Leiter’s (the only real difference is that in the Westaw searches I included nicknames such as “Sam” given the common number of nicknames in the election law field).  I welcome corrections and additions.

Note also that a number of people on this list write and are cited in other areas. For example, Sam Issacharoff is cited often for his work in civil procedure.  Following Leiter, I included in this specialty listing those law professors people who appear to receive at least 75% of their citations in the election law field. [UPDATE: Leiter writes: "I suspect more than 25% of the cites to some of these folks are to non-voting rights scholarship, but I may be wrong."]  Citations rounded to the nearest 10.


Rank Name Institution Total Citations
1 Samuel Issacharoff NYU 1040
2 Rick Pildes NYU 920
3 Pam Karlan Stanford (currently on leave to DOJ) 780
4 Rick Hasen UC Irvine 690
5 Richard Briffault Columbia 620
6 Heather Gerken Yale 480
7 Beth Garrett USC 450
 8 Nate Persily Stanford 420
9 Adam Cox NYU 330
10 Jim Gardner Buffalo 320
Highly cited scholars who work partly in election law:
Jonathan Adler Case Western 530
Sam Bagenstos Michigan 430