Judge Posner on Ideology in Judicial Selection

From How Appealing's 20 Questions Interview with Judge Richard A. Posner:

I don't object to the fact that Senators are concerned about the ideology of judicial candidates; the President is concerned, so why shouldn't the Senators be? Anyone who is realistic about the American judicial process knows that ideology affects decisions, especially the "hot button" decisions that engage the attention of politicians; and Senators are politicians. What is objectionable about the current process is the length of time it takes. I don't see why it couldn't be compressed. Between the time that I agreed to accept appointment as a judge, which was near the end of June 1981, to the time I was confirmed by the Senate, which I think was sometime in November, about five months elapsed, and I don't see why the process should take any longer than that.

More on Soros's Spending Against Bush

See this FOXNews story and this Los Angeles Times story. What a spectacle it is to see Republicans, many of whom support a system of unlimited campaign spending (often coupled by a call for strict disclosure rules), condemn Soros's spending plans to defeat Bush, and to see Democrats, many of whom promoted McCain-Feingold as a way to get "big money" out of politics, rejoice in Soros's spending.

Did Dean do a "Bait and Switch" on Campaign Funding?

A supporter of a Democratic candidate for President other than Howard Dean directs me to this request for an advisory opinion by the Gephardt campaign, which basically asks whether a presidential candidate who has agreed to accept public financing and then later changes his or her mind must tell donors of the switch and give them the option of a refund. The writer suggests that Dean "bait and switched many donors who gave under the now-invalidated belief (encouraged by the Dean campaign) that their dollars would be matched by the feds." It will be interesting to see how the FEC responds to the request for the advisory opinion. My guess is that if Dean is required to offer donors refunds, few would ask for their money back.

Colorado Re-redistricting Decision Due from State Supreme Court Monday

See this Denver Post report (link via How Appealing).

York on the Stolen Democratic Memos

Byron York writes here about the memos stolen (perhaps by a GOP staffer, who has now been put on administrative leave pending investigation) from Senate Democrats about judicial nomination strategies. York castigates the mainstream media for not picking up the story of the substance of the memos. What precisely is that substance? According to York:

The memos, dating from 2001 until April 2003, show Democrats working in close consultation with such groups as People for the American Way, the Alliance for Justice, NARAL Pro-Choice America and the Leadership Conference on Civil Rights.

Actually, “close consultation” is too weak a phrase. The memos reveal the Democrats and the interest groups to be partners in the effort to defeat Bush nominees — with the Democrats serving as the junior partners.

I am one person who is far from shocked by the memos. As I have been writing for months, the Democratic strategy to selectively use the filibuster of Bush judicial nominees that Democrats can paint as too "extreme" is a way of appealing to their base (just as Republican strategy to paint the Democrats as obstructionist and engaging in a downward spiral is rational). Democrats work in close consultation with groups that represent their base, just as Republicans do. This is not an outside group dictating what a party should do; it is the party following the rational strategy of relying on the research of such groups to target those judicial nominees whose filibuster makes the most sense politically. I would imagine that if Republican memos from the Clinton years were made available we would see a similar pattern of close consultation, this time with conservative interest groups.

"Redistricting Divides Small Texas Town"

A.P. offers this report.

Campaign Finance Views

E.J. Dionne offers How to Fix Financing. And see these letters to the editor on an earlier Washington Post editorial.

"Financing Moves by 2 Democrats Recast Early Campaign Fights"

The New York Times offers this front-page report.

"Conservatives shocked by power of money; Soros draws fire as billionaire contributing to the wrong side"

Joe Conason offers this oped, originally appearing in the New York Observer.

"State Asks Supreme Court to Tackle Blanket Primary"

KOMO offers this report (link via SCOTUSBlog).

BCRA---Calm Before the Storm?

The Supreme Court is back in session on Monday, and the next chance that they could issue the opinion in the BCRA (McCain-Feingold) campaign finance case is Tuesday, December 2. My prediction had been a decision between mid-October and November, and that is about to be proven wrong. Some are betting on a December 15 decision, the last date that the Court is in session before a month-long break, and about a month before the first primary (meaning just when the electioneering communications provisions of BCRA kick in, requiring disclosure and the use of separate segregated funds by unions and corporations for broadcast spending that mentions a candidate and is targeted at the relevant electorate). Stay tuned.
UPDATE: Over at SCOTUSblog, Marty Lederman reports that the Court will issue opinions on Tuesday, but not Wednesday, of next week. We do not know if the BCRA opinion will be issued on Tuesday or not.

"Officials Vow to Fix Voter Problems Before 2004"

FOXNews offers this report. Of course, we know that many of the problems cannot be fixed by 2004. In Illinois, for example, punch cards will be used in 2004; under a recent settlement of a lawsuit challenging the use of the cards, the state agreed to eliminate them, but not in time for the next election. Indeed, Democrats almost passed legislation allowing a "dimpled chad" to count as a vote in a punch card recount---the legislation was blocked by Republicans, though it passed in the Illinois lower house as part of a bill that would have allowed President Bush's name to appear on the ballot despite the late date of the Republican convention.

So despite the optimistic "vow" in the title of this article, I know of no one who believes the serious problems will be eliminated in 2004. Instead, we must rely on the election officials' prayer that the election not be close.

Tokaji's take on DRE/disability issue

Law professor Dan Tokaji sends along the following thoughts regarding potential disability rights issues related to the DRE paper trail issue:

In response to the question posed in your blog, I think the best Americans with Disabilities Act/Section 504 theory is something along the lines that Eve suggests, namely that Shelley's decision will make it very difficult if not impossible for counties to convert to more accessible DRE systems. None of the DREs presently certified can do what he would require. There are apparently some prototypes, but they've not successfully been implemented in a real-world election environment. Thus, I fear it's very likely that the decision will lead counties to either stand pat with their existing paper-based systems (the only ones who can't do this are the 9 pre-scored punchcard counties affected by the consent decree in Common Cause v. Jones) or convert to optical scan systems (they could even go to the still-certified Datavote punchcard machine, though I think this is unlikely). By the time a DRE-with-contemporaneous-paper-replica that actually works is developed, the federal and state money may well have dried up -- even assuming that such a machine isn't prohibitively expensive. There's also a question about whether or not a DRE-with-paper-trail, once it developed and implemented, will accommodate visually impaired voters.

An ADA/504 claim might draw support from a district court decision in Florida, denying a motion to dismiss ADA and Section 504 claims brought by disabled voters challenging the failure to adopt voting technology accessible to people with visual and manual dexterity impairments. AAPD v. Hood, 278 F. Supp. 2d 1345 (M.D. Fla. 2003). The best targets for ADA claims may be counties that decide to go with optical scan systems rather than DREs as a result of Shelley's decision -- and I suspect that we will see such litigation in California at some point in the not-too-distant future.

Another possible theory is that the requirement contravenes Section 2 of the Voting Rights Act, because it will lead counties to choose (or stay with) systems that result in a disparity in uncounted votes. There are studies showing that optical scan and punchcard systems lead to a significant black/white disparity in residual votes, a disparity which virtually disappears with DREs. See http://www.stanford.edu/~tomz/pubs/gap.pdf (Tomz & Van Houweling)

Incidentally, I'm quoted in the SJ Mercury News as saying that Shelley's decision "could lead to legal challenges under both the federal Americans With Disabilities Act and the federal Help America Vote Act." This is a correct transcription of a quotation taken from a press release opposing Shelley's decision (issued by California Common Cause, Asian Pacific American Legal Center, and Western Law Center on Disability Rights), and the part about the ADA is right. However, the end of this sentence should have read "the Voting Rights Act" rather than "the federal Help America Vote Act."

I'm curious as to whether there might be a cause of action under the state elections code as well. Looking forward to seeing whether your blog readers who know more than I do about state requirements for certification and decertification of voting systems think about that.

One final note: Your blog makes reference to a split between the voting rights and disability rights community. I think that split may be more apparent than real. The California voting rights advocates that I know are concerned with, if not outright opposed to, Shelley's decision. That includes groups such as the APALC and California Common Cause, which signed on to the press release the other day, as well as national groups like the League of Women's Voters-US and Leadership Conference on Civil Rights which have previously opposed a VVPAT (although I understand they're now under considerable pressure to change their position). There may be some voting rights advocates who support the VVPAT, but the ones I've been working with don't think it should be required -- and actually believe that the end-result of Shelley's decision will be harmful to the voting rights of people of color and linguistic minorities.

Thanks for writing.

NPR Election Law Stories

All Things Considered featured this audio report, "Jury Holds Inquest into DeLay's PAC." Day to Day featured "Ex-Cons Fight for Right to Vote."

"McCain-Feingold Hurts Dems on Medicare Bill"

The Hill offers this report.

"Dems in Texas Face Racial Rift Over New Map"

The Hill offers this report.

"Lawmakers Seek To Quash Redistricting Subpoenas"

The Fort Worth Star-Telegram offers this report, which begins: "Attorneys for House Majority Leader Tom DeLay of Sugar Land and Rep. Joe Barton of Ennis are to go to court today in Marshall to ask a three-judge federal panel to quash subpoenas from Democrats who want the lawmakers to give depositions in the contentious congressional redistricting case."

New York redistricting trial underway

See this New York Times report.

Disability Law's Theories Against the DRE Paper Trail

In response to this post, my Loyola colleague and head of the Western Law Center for Disability Rights Eve Hill sends along the following response:

I saw your blog entry re. touch screen voting and the Secretary of State's paper trail requirement. You asked about the theory behind any potential lawsuit on behalf of potential voters with disabilities. There are actually several theories, but they are not based on the fact that most counties will likely be priced out of buying touch screen technology and forced to use optical scan voting. Although optical scan voting machines are inaccessible to blind voters (and language minorities), they are not prohibited by either the ADA or HAVA. HAVA requires that there be at least one DRE at each polling place in order
to ensure that there is a means of accessible voting.

Of course, we don't want counties to use optical scan. We prefer touch screens across the board - for a variety of reasons, including that if there's only one accessible machine, it will undoubtedly be broken or lost or out of order or no one will know how to use it (this is what always happens with the "special" equipment for people with disabilities). I don't know yet whether counties using optical scan with 1 touch screen at each polling place will be violating the law.

But the main theory at this point is that requiring that one touch screen machine per voting place to have a paper trail will violate the law (or, alternatively, where all the machines are touch-screens with paper trails). Right now, the touch screen machines give the voter a screen showing how she voted and, for blind people, an audio report (via headphones) of how she voted. Because the information is available in an accessible format and an inaccessible format, it doesn't violate the ADA or HAVA. However, the Secretary of State's requirement would require an additional paper printout that the voter must verify is correct and deposit with the poll worker. This second verification is purportedly necessary because, in case a recount is needed, the voter-verified printout will be a check on the electronic count (for a variety of reasons - some of which were discussed in my Daily Journal op ed on November 17 - I don't believe that this is necessary or that it will actually help much). However, this second verification is not accessible to people with vision impairments. It is not printed in Braille or verified audibly (unless a poll worker reads it to the voter,
which obviously destroys the privacy of the vote).

The inequality is in having 2 points of voter verification, only one of which is accessible. Shelley's position indicates that the paper printout presumptively trumps the electronic vote in any recount, but blind voters do not have the opportunity to check that paper printout. This inequality may raise an ADA violation (Title II). In addition, if the single DRE at each polling place has a paper printout, it may violate HAVA (because the voting machine that is required to be accessible to blind voters is actually not accessible to blind voters - ironically!). It may also violate state law. In fact, the California Attorney General believes requiring a paper trail will violate the ADA, HAVA, and state law.

So that's the legal problem. The practical problem is that paper trails increase the cost of touch screens by $500 per machine, plus add paper, printing, and paper storage expenses, which make touch screens more expensive than optical scan machines. So we'll end up with the least accessible technology (for people with disabilities, language minorities, and people who are illiterate) being the norm, rather than the better technology.

The Daily Journal article that Eve refers to is called "MOVING BALLOTS INTO AGE OF COMPUTERS; People's Worries About Security Of Touch-Screen Voting Machines Are Exaggerated."

This is the first time I can remember where there has been such a split between the voting rights community and the disability rights community.

"Can America Trust Electronic Voting?"

See this Sacramento Bee oped by Freddie Oakley, Yolo County clerk/recorder and John Oakley, professor of law at King Hall School of Law, UC Davis.

Interesting California case on voting in State Bar districts

A California Court of Appeal has upheld against state constitutional challenge a California State Bar rule that allows only active members of the State Bar who maintain their principal law offices in the respective State Bar districts can vote, or run as candidates, for the Board. Plaintiff, from out of state, challenged the rules under the California constitutional right to vote and free speech provisions, that are roughly akin in this context to federal constitutional standards. The opinion in Hoffman v. State Bar gives a nice summary of the legal rules governing restrictions on the franchise.

California Association of Clerks and Elected Officials Responds to Shelley's Paper Trail Directive for DRES

See here. Link via Electionline.org.

And in news from Roll Call

See

GOP Group Joins Soft Money Fray, which begins: "A not-for-profit organization with strong Republican ties has re-formed in recent months with several top GOP strategists at the helm in an effort to counter the proliferation of soft-money groups on the Democratic side." (I doubt the group will be subject to the same subpoena effort directed at Democratic leaning organizations.)

NRCC Takes Barred Funds", which begins: "Officials at the National Republican Congressional Committee said they plan to immediately refund an illegal foreign contribution received through a fundraising telemarketing program featuring House Majority Leader Tom DeLay (R-Texas)."

GOP Committees Keep Building Up Money Edges.

AFL-CIO Fails on Disclosure, which begins: "Officials at the AFL-CIO are blaming “human error” for the organization’s failure to report presumably millions of dollars spent lobbying Congress over the past two years, while insisting there had been no attempt made to shield the group’s lobbying activities from public view."

Presidential Funding Reform Proposed.

FEC Actions, which begins: "The Federal Election Commission adopted new rules last week allowing Members of Congress to be as deeply involved with their leadership PACs as they wish — without worrying that the committees will be deemed to be affiliated with their re-election efforts."

All articles require a paid subscription to access.

"Tech Glitches Slow Vote Count"

The Washington Times offers this news out of Fairfax County, Virginia.

Illinois ballot controversy continues

Following up on this controversy, the Chicago Sun-Times offers Topinka Blasts Democrats for Keeping Bush Off Ballot.

More subpoenas

Following this news about a Republican-dominated House committee using subpoenas against Democratic organizations comes other subpoena news: Texas Democrats Subpoena DeLay Over Map.

McCain-Feingold news and opinions

The Washington Post editorializes Mr. Soros's Millions; George Will writes Candor and Campaign Finance; and Chuck Raasch writes Campaign Reforms Also Bring New Black Holes in Political Universe.

Only in Illinois

See GOP Lawmakers to Pay Dearly to Get Bush on Ballot in the Chicago Sun-Times. The article begins: "In a delicious political irony, House Republicans were forced to go to great lengths Thursday to ensure that President Bush's name gets on the Illinois ballot next year -- and Mayor Daley's early-retirement package hung in the balance. The price the House GOP paid to benefit Bush meant voting to spare Democrat Secretary of State Jesse White steep election fines. Plus, they had to agree to Democratic demands to permit the same type of flawed paper ballots to be counted in Illinois that Republicans fought against in Florida to hand Bush the 2000 presidency.
But it turns out this report may have been premature. See here and here.

Will DRE Paper Trail Controversy Lead to Lawsuits?

Fallout from California Secretary of State Kevin Shelley's decision to require a paper trail for DREs. See this Los Angeles Times report. See also reports in the Oakland Tribune; San Francisco Chronicle; San Jose Mercury News; A.P.; and Wired News.

The Mercury News article suggested possible litigation from the disability community. Although I'm not entirely clear on the theory, it appears to be that the requirement will encourage counties to buy cheaper optical scan machines, which are harder for some disabled voters to use. If there are other potential legal theories, I would like to hear about them.

Bush v. Gore as a "Bad Hair Day"

Don't miss these comments by New York Times Supreme Court correspondent Linda Greenhouse.

BCRA Sponsors Offer New Bill to Overhaul Presidential Public Financing

See this A.P. report. See also this summary of the bill and this statement by the bill's sponsors.

"State Tells Counties to Establish Paper Trail on Electronic Voting"

Voting rights advocates who have insisted that DRE (electronic) voting machines have a verifiable paper trail scored a victory in California. See this Los Angeles Times article.
UPDATE: See this A.P. report.

Balkin on Dean's campaign finance decisions

Jack Balkin offers these thoughts on Howard Dean's decision to withdraw from the public finance system. Among Balkin's points: "So there is reason to be glad about what Dean is doing. If he demonstrates that his model works, and and if both major parties turn to the Internet and to a broad base of smaller contributions as the best way to finance a campaign, we will ameliorate the influence of money on politics. That is not because there will be less money in the system, but because it will be raised and delivered to the candidates in ways less corrosive of the democratic process."

Estrich oped on campaign finance

Susan Estrich writes A Big Payoff in Iowa for the Indianapolis Star.

Indiana's election commission deadlocks

See Election Fine Against Lawmaker Erased in the Indianapolis Star. The article begins: "An Indiana lawmaker will pay no penalty despite repeatedly breaking state election laws, after the Indiana Election Commission deadlocked along party lines on his punishment Thursday.

The partisan impasse erased the $10,000 fine levied by the commission in June against state Rep. Brooks LaPlante, R-Terre Haute, for failing to report any of the money he poured into his campaign in the final days before the election."

Republicans in House Threaten to Use Subpoena Power Against Democratic 527 Organizations

The dispute is getting nastier. See this Washington Post report. See also this Roll Call breaking news report (paid registration required).

Important Report on Security of Electronic (DRE) Voting Machines

The Congressional Research Services has published this report, "Election Reform and Electronic Voting Systems (DREs): Analysis of Security Issues." (Link via Electionline.org.) From the executive summary:

With DREs, unlike document-ballot systems, the voter sees only a representation of the ballot; votes are registered electronically. Some computer security experts believe that this and other features of DREs make them more vulnerable to tampering than other kinds of voting systems, especially through the use of malicious computer code. While there are some differences of opinion among experts about the extent and seriousness of those security concerns, there appears to be an emerging consensus that in general, current DREs do not adhere sufficiently to currently accepted security principles for computer systems, especially given the central importance of voting systems to the functioning of democratic government.

Others caution, however, that there are no demonstrated cases of computer tampering in public elections, and any major changes that might be made to improve security could have unanticipated negative effects of their own. Several proposals have been made to improve the security of DREs and other computer-assisted voting systems. They include (1) ensuring that accepted security protocols are followed appropriately, (2) improving security standards and certification of voting systems, (3) use of opensource computer code, and (4) improvements in verifiability and transparency. Much of the current debate has focused on which such proposals should be implemented and through what means — in particular, whether federal involvement is necessary. Some states are already addressing these issues. The Election Assistance Commission established by HAVA will have some responsibilities relating to voting system security and could address this controversy directly. Some observers have also proposed federal funding for research and development in this area, while others have proposed legislative solutions including enhancement of the audit requirements under HAVA. (My emphasis)

"Internet Voting Stirs Debate in Michigan"

A.P. offers this report.

Campaign Finance Coverage

The New York Times offers A Hard Road for Democrats in a Day of No 'Soft Money.' The Boston Globe offers A Push to Rescue Campaign Finance. Roll Call offers FEC to Rule on Travel (paid registration required). AP offers Rivals Benefit from '04 Candidates Who Skip Public Funds.

"GOP Eyes Democrats' Soft Money Lead"

The Washington Times offers this report. Thanks to Nate Persily for the pointer.

Vieth Briefing Complete

Plaintiffs today filed this reply brief in the important partisan gerrymandering case to be heard by the Supreme Court on December 10.

I have read the other briefs in this case and look forward to reading this one. In coming days I'll be offering some commentary about the case.

Tova Wang on voting reform and elections issues

Wang, of the Century Foundation, has written some interesting articles that you can find here, here, here, and here (the last one is a co-authored report, "The Help America Vote Act: Impact and Potential for New York").

"FEC to Loosen PAC Rules for Lawmakers"

The Hill offers this report.

Improving Senate Disclosure Rules

Roll Call reports on a new bill by Senators McCain and Feingold to require electronic filing of Senate campaign finance disclosure reports.

"Ney Mulls Subpoenas"

Roll Call offers this report (paid subscription required), which begins: "The leaders of five Democratic-leaning organizations have refused to testify about their soft-money activities during a House Administration Committee hearing scheduled for Thursday, forcing Republicans to decide whether to use their subpoena power to compel the officials to appear." The Hill's report is available free on-line. All of this grows out of the contributions by George Soros and others to Democratic-leaning 527s.

"Cash Flow"

David Broder writes this Washington Post oped.

"Fairfax to Probe Voting Machines"

The Washington Post offers this report. The newspaper also offers Civil Rights Groups Fear Effect of E-Vote Company Threats.

More on Schwarzenegger Fundraising

See this Los Angeles Times report.

"2 Brooklyn Democrats Indicted in Judicial Corruption Case"

See this New York Times report.

No BCRA Opinion Before Dec. 2

Confirming what readers of this blog already know, today's Supreme Court Roundup in the New York Times reports: "After announcing its orders on Monday morning, the court began a Thanksgiving recess that will last until Dec. 1. Those awaiting a decision in the campaign finance case that was argued in a special session in September will have to wait until at least Dec. 2, the next day on which the court is scheduled to announce decisions."

Gephardt Complains to FEC about Dean Decision on Public Funding

Roll Call offers Gephardt Questions Public Financing Reversals, which begins: "With two of his rivals for the Democratic presidential nomination already rejecting public financing, Rep. Richard Gephardt (Mo.) has asked the Federal Election Commission to weigh in on whether a candidate may agree to participate in the system and later “opt out” without facing penalties." The article quotes an unnamed election law expert as follows:

“The FEC won’t want to be in the position of enforcing campaign promises, i.e., if you contribute to my campaign now, I promise I’ll take public financing,” remarked one attorney. “The situation would be a lot different if Dean had already accepted federal funds, but so far all he has done is qualify for federal funding.”

"Judging Terry"

The American Prospect has this article by Harold Myerson on Democrat Terry McAuliffe and his fundraising abilities.

Republicans Attack Campaign Finance Reform Groups for Not Sufficiently Criticizing the Activities of Benefactor George Soros

See this Washington Post report, this report in The Hill, and this Roll Call report.
UPDATE: George Soros, discussed in the above articles, has pledged money to Moveon.org, which is profiled in this New York Times article.

New articles on recall

The Forum, an online journal from Berkeley Electronic Press, has published here four articles by the California recall, by Dan Lowenstein, me, Michael McDonald, and Elizabeth A. Cappell. The articles by Dan and by me are revised versions of our Daily Journal opeds on the en banc Ninth Circuit decision in the punch card case. If your institution is not subscribed to the journal, you can enter information and still read the journals.

New Minnesota campaign finance case

The case is Minnesota Citizens Concerned for Life v. Kelley. J.J. Gass has the details here.

A few reactions to Eugene Volokh on electronic voting machines

This post responds to Eugene's post here.

1. Eugene is right that some independent audit is absolutely necessary in case of a recount of votes cast with electronic voting machines (DREs). But a paper receipt is controversial. First, if you allow the receipt out of the polling place, you allow the possibility of vote buying because one can confirm how one voted. There are also the problems of additional machinery and printers breaking down. On the other side, some computer scientists have raised serious concerns about security of DRE machines. The National Institute of Standards and Technology is going to address this question soon and I hope give some good guidance on where to go.

2. Eugene mischaracterizes the nature of the ACLU's claim. (Disclosure: I filed a brief supporting the ACLU). The claim was to eliminate punch cards, not to adopt DREs. In fact, Los Angeles will not move to DREs until at least 2005. L.A. was planning on using a new, unproven system, however, which would use optical scans cast on something like punch card machines. My view was that the recall should have been conducted in Los Angeles County using paper ballots. There were only four questions, it would have been easy to count, and recount if necessary.

UPDATE: Eugene and I exchange more here. See also this post on Cranial Cavity.

"Justice Softens Stand on BCRA"

Roll Call offers this report (paid subscription required), which begins: "Senior Justice Department officials said Friday they do not intend to prosecute violations of federal campaign finance laws involving political speech, signalling that the more controversial and complex areas of the new law including the ban on soft money, coordination and issue ads may be off-limits for criminal charges."

Republicans to do nothing about Democratic filibuster

As I've been saying for months, it is rational for Republicans to threaten the filibuster but not follow through. See this Roll Call article (paid subscription required), which begins: "Despite nine months of assaults on Democratic filibusters, Senate Republicans are admitting they still don’t have the support within their own Conference to pass a leadership-backed proposal to change the chamber’s rule on nominations.

Even more troubling for those behind the effort to bring an end to filibusters, Republicans are far from securing the 50 votes they would eventually need to execute what has become know as the “nuclear” option, the controversial parliamentary route that would require only a simple majority to end filibusters on nominations."

One mystery solved

Following up on this post, Laurel Elms and Samantha Luks have an explanation for the 0 turnout results in Alameda and Plumas counties (Kern's figures are not available on their website). It is not a conspiracy but rather incompetence in geting information from the county to the Secretary of State. [Note: the "incompetence" characterization is mine, not theirs.] They report that if you download the precincts file from this link on the Alameda County site, there are figures showing undervotes and overvotes showing a 0.8% residual vote rate (most undervotes, but a few overvotes). Similarly, from this link, Elms and Luks calculated a 1.1% residual vote rate in Plumas.

We'll have to wait to hear from the Kern officials when they open for business tomorrow.

Of course, though this solves one mystery, it leaves open the questions of other disparities, such as the nearly double residual vote rate for Los Angeles County compared to the statewide average (which of course would be much lower if we took Los Angeles out of that average).

UPDATE: David Kimball writes: "Based on another link at the state board of elections, there were 164,920 total ballots cast in Kern County, which produces a residual vote rate of 2.8% for the first part of the recall."

"Opting Out"

The New York Times offers this Week in Review article about the public financing system.

More troubling voter technology evidence from California recount statistics

As we know, exit polling showed a 2.6% intentional undervote rate on question 1 of the California recall. The average state final figures show an average undervote rate of 4.6%. I had been using the preliminary figures from the state to argue that the ACLU was right in challenging the punch card voting in six California counties, because of their much higher than average vote count. The final statistics vindicate the ACLU. Los Angeles, the largest county, had an 8.9% undervote figure. (Disclosure: I filed a brief supporting the ACLU in this case.)

Anthony Argyriou and Eugene Volokh point out an equally disturbing trend: an underrate of 0 in three counties (Alameda, Kern, and Plumas), all of which used Diebold-made voting machines. See the Secretary of State's undervote figures here.

Alameda and Plumas were the only counties to use Diebold DRE machines. Kern used Diebold-made optical scan machines. Other counties using those same types of machines as Kern had more typical undervote rates. (Here is the list of voting machines by county.)

What does this tell us? First, an investigation is absolutely essential. I recall that preliminary figures gave Alameda a 0.4% undervote rate on the first question. How did this change? Are there any factors other than malfunctioning voting technology that might explain this result? One thing that anecdotal evidence suggests is that because the touch screen prompts voters to avoid unintentional undervoting, it might prompt voters who intended to undervote not to do so---perhaps in an effort to finish voting and leave the polling place.

Is this an argument for the need for a voter verified paper trail? I think we need to wait to hear what the experts from NIST tell us after their conference. Most unusual is the result from Kern using the optical scan ballots. Because the result is inconsistent with the results reported from other counties using the same technology, the explanation likely is not the vote casting machinery. Perhaps there was a problem with the vote counting machinery in Kern.

As I said, the most important thing is an investigation, and a quick one. If there are problems that can be identified and resolved before the 2004 elections, we would all be better off.

Now that It's Official...

Schwarzenegger is certified as the next California governor, and Dan Weintraub reports a 4.6% final undervote on question 1 of the recall. Now social scientists can start to put together final statistics showing how abysmal the performance of punch cards was in the California election.

Kerry Opts Out of Public Financing Too

See this Washington Post report.

No BCRA Opinion before Dec. 2

Marty Lederman has the news here.

More Filibuster Nonsense

The blogosphere has been debating judicial nominations (kicked off with this Solum post---linking to the later posts), as the Senate continues its marathon debate.

From that debate comes the following interesting development. According to this Roll Call breaking news report (paid registration required), Senators Lindsey Graham and Saxby Chambliss "are filing a lawsuit against the Senate in an attempt to force the Supreme Court to overrule the use of a filibuster to block a president’s judicial nominations."

The article also provides the following information:

Graham and Chambliss had been considering the lawsuit option since late in the spring, but had been counseled by many constitutional lawyers that the courts would be loath to take up such a political issue that many consider an internal matter for one of the legislative bodies.

But Graham said some lawyers have encouraged him to take up the case, of which he and Chambliss expect to hammer out the final details over the Thanksgiving-to-Christmas holiday season. The actual suit is expected to be a direct appeal early next year to the Supreme Court, which could reject the case outright, refer it to one of the lower federal courts or take up the case.

Not only do I believe that there is virtually no chance that the Supreme Court would want to take the case, I cannot believe that the Republican Senate leadership would want the Supreme Court to take the case. After all, would the Senators want the Supreme Court or the Senate to be the ultimate arbiter of the Senate's own rules?

Shelley to Audit California Voting Systems

California Secretary of State Kevin Shelley issued this press release, which begins: "Secretary of State Kevin Shelley announced today that he will seek an independent audit of all California voting systems. This audit was triggered when allegations surfaced that uncertified software was installed in touch screen voting systems in Alameda and Plumas counties." See also this Contra Costa Times report. Thanks to Electionline.org for the pointers.

"G.O.P. Leader Solicits Money for Charity Tied to Convention"

The New York Times offers this front-page report, which begins: "It is an unusual charity brochure: a 13-page document, complete with pictures of fireworks and a golf course, that invites potential donors to give as much as $500,000 to spend time with Tom DeLay during the Republican convention in New York City next summer — and to have part of the money go to help abused and neglected children." See also Bush Raises More Money, and Questions About Reducing Its Influence. Meanwhile, the Christian Science Monitor offers On '04 Race, Buck Stops . . . Where?

Is BCRA's "Stand by Your Ad" Provision Constitutional?

There has been a great deal of press coverage recently of the provision of BCRA requiring candidates for federal office to take responsibility for their television and radio ads. (For my earlier coverage see: here; here; and here.)

Here is the provision in question: (from BCRA section 311(d)):

‘‘(1) COMMUNICATIONS BY CANDIDATES OR AUTHORIZED PERSONS.
—
‘‘(A) BY RADIO.—Any communication described in paragraph (1) or (2) of subsection (a) which is transmitted through radio shall include, in addition to the requirements of that paragraph, an audio statement by the candidate that identifies the candidate and states that the candidate has approved the communication.
‘‘(B) BY TELEVISION.—Any communication described in paragraph (1) or (2) of subsection (a) which is transmitted through television shall include, in addition to the requirements of that paragraph, a statement that identifies the candidate and states that the candidate has approved the communication. Such statement—
‘‘(i) shall be conveyed by—
‘‘(I) an unobscured, full-screen view of the candidate making the statement, or
‘‘(II) the candidate in voice-over, accompanied by a clearly identifiable photographic or similar image of the candidate; and
‘‘(ii) shall also appear in writing at the end of the communication in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds."

Section 305 of the BCRA also denies the lowest advertising rates to those candidates who mention other candidates and fail to include the "stand by your ad" provision.

These provisions cannot be intended as merely disclosure provisions, because they specify that the candidate must do the disclosure himself or herself. (But see note 50 in the government's BCRA Supreme Court brief: "Like the other disclosure requirements that BCRA imposes with respect to electioneering communications, BCRA § 311 furthers the government’s interest in ensuring an informed electorate." So far as I can tell, the McCain defendants don't devote any attention to this issue at all.)

As sponsors and others have admitted, the purpose is to curb "negative" advertising. Assuming that Fred Wertheimer is right that one cannot have a more pinpointed law for this purpose (because there is the question of who is going to define "negative advertising), can these sections of BCRA be upheld? Even putting aside overbreadth problems, I'm dubious. There are cases (described in Chapter 11 of the Lowenstein and Hasen casebook) holding that false campaign speech may sometimes be regulated (some courts require proof that the statement is also defamatory). But these provisions of BCRA don't purport to regulate false speech, only negative speech.

Certainly this law cannot be defended as a content neutral provision. Is the state's interest in insuring civility in debates enough to save the law? It might be relevant that negative campaigning in the United States is as old as the Republic itself.

"Stating Obvious Could Limit Negative Ads"

A.P. has this story on BCRA's "Stand By Your Ad" provision.

Solum post on judicial selection

Read Larry's thoughtful post. I suppose I am one of the people Larry is referring to who believes, at least when it comes to constitutional adjudication of rights, that talk of formalist judging is just "pie in the sky." But believing that ideology matters is not the same as believing the system is corrupt. Larry conflates the two, discussing "odd corners of the United States, where lawyers know that winning even in a run of the mill tort case is almost entirely a function of how much you have contributed to the local political machine." I don't believe for a minute that Supreme Court Justices deciding election law cases do so based on personal or pecuniary gain (despite the fact that this charge has been made against some Justices in the Bush v. Gore majority). The Justices do the best they can to apply the Constitution as they read it, (sometimes subconsciously) through the ideological lens by which they view the document.

Election law conference roundup

USC Post-Mortem on the Recall, Los Angeles, Nov. 13-14

Conference on Criminal Liability and Prosecution Under McCain-Feingold, Washington, D.C., Nov. 14

Symposium on North American Election Law, Washington, D.C., Nov. 15

Claiming Democracy Conference, Washington, D.C., Nov. 21-23

I'll be attending the North American Election Law conference. Blogging therefore will be light beginning tomorrow.

Roll Call articles

Roll call offers House Administration Sets Hearings on 527s and FEC Slaps SEIU with $260,000 Penalty. (Paid subscriptions required to access the articles.)

"Can Voting Machines Be Trusted?"

CBSNews offers this report.

"Dean: Opting Out..."

George Will offers this oped on Howard Dean's decision regarding public financing. See also this Washington Times commentary by Donald Lambro.

Voting by multiple property owners in special district elections

I sent a query regarding voting by multiple owners of the same property in special district elections and Steve Bainbridge posted a thoughtul response here. You can find my query reprinted in Bainbridge's post.

Initiative and Referendum Institute Moves to University of Southern California

See this press release, which begins: "The Initiative and Referendum Institute (IRI), the nation’s most prominent educational and research organization focused on direct democracy, will move to USC Jan. 1. IRI will join the USC-Caltech Center for the Study of Law and Politics (CSLP) to form the nation’s leading center for the study of the initiative, referendum and recall." (Disclosure: I am a member of USC's Center for the Study of Law and Politics.)

Internet Voting and Habermas

Alec Ewald sends along the following: "Jennifer Stromer-Galley has published Voting and the Public Sphere: Conversations on Internet Voting, 36 PS (Political Science and Politics) 727 (Oct. 2003). It's a short article looking at what some discussion groups have been saying about internet voting, particularly "whether or not it is valuable for people to enter a physical public sphere to cast a ballot," applying Habermas' concept of the public sphere." Unfortunately, PS has not put this particular article online at its website.

"Growing Power of Small Money"

Robert Kuttner offers this Boston Globe oped. And on the growing power of big money, the Chicago Sun Times offers Hull ups the ante in Senate bid," which begins: "He's the $40 million man. That's how much Democrat Blair Hull intends to spend in his bid for the U.S. Senate seat that is being vacated by one-term Republican Peter G. Fitzergald."

"Lewis pledges $12 million to oust Bush for presidential race"

The Cleveland Plain Dealer offers this report.

"End the Debates Before they Start"

Paul Weyrich and Randall Robinson write this New York Times oped criticizing the format of the presidential debates run through the Commission on Presidential Debates.

No BCRA Opinion Today

Apparently the only opinion to be issued is in Barnhart v. Thomas. See SCOTUSblog with the news. The next chance apparently is Monday (we may know on Friday if opinions will issue Monday), and after that the Court is in recess until December 2.

Will Kerry Opt Out of Public Financing?

The New York Times offers this report.

"E-Vote Firm's Bill to Come Due"

Wired offers this report on the Diebold controversy in Alameda, California. Wired also has set up Machine Politics, a page devoted to Wired stories on e-vote issues.

Proposed Legislation to Fix Presidential Public Financing System

The Hill offers Campaign Reform--Part II; Bid to Raise Cap on Spending and Add Money Multiplier," which begins: "Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) and Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.) are drafting legislation to provide the presidential public financing system with a major infusion of federal money. They want to raise the spending cap substantially so that candidates who are successful raising money do not opt out of the federal system, as President Bush and Democratic front-runner Howard Dean have done. The lawmakers also envisage a system in which private donations would be not simply be matched but multiplied perhaps, several times, with federal dollars. "

A Recess Appointment for Pickering?

See this report in The Hill. Larry Solum has blogged extensively about this possibility in the past and I expect he'll write about this again if the idea gains momentum. As a political matter, I think putting Pickering on the bench through a recess appointment would give the Democrats a good issue to run on with core Democratic voters.

UPDATE: As hoped, Larry Solum has responded with a thoughful post. See here I would just add regarding the Barnett proposal that it may be rational to threaten to do so, but Republicans won't do it. It would just give Democrats more fodder.

"Billion-Dollar Question: How Much Does a Fair Election Cost?"

Norm Ornstein offers this Roll Call oped (paid subcription required), making a point readers of this blog will be quite familiar with: voting technology problems persist, and they will only go away when money is spent to replace bad voting technology such as punch cards with better technology.

Report on Public Financing in Tuscon

The Center for Governmental Studies has just issued this report, "Political Reform tha Works: Public Campaign Financing Blooms in Tuscon."

Interesting fundraising link

Nate Persily sends along this interesting link on fundraising by presidential candidates.

"Billionaires Back Online Activists' Anti-Bush Ads"

The Wall Street Journal offers this report on the funding of Moveon.org. Thanks to Steven Sholk for the pointer.

Problems with Monterey (CA) all-mail election

The Monterey Herald offers Delayed Ballots Spur Inquiry, which begins:

Monterey County's first mail-ballot election may turn into a legal quagmire.

Registrar of Voters Tony Anchundo said Monday he will ask the Monterey County district attorney and the U.S. attorney general to investigate how an unknown number of ballots did not reach their destination in Castroville until after the election was over.

"Something just doesn't smell good," Anchundo said.

"Touch Screens Worry Voters"

The Miami Herald offers this report.

"On the Left: Contributions give donors unprecedented access"

Maya Valverde offers this oped in The Olympian (Washington state).

"Dean Threat May Help Bush Up Fundraising Ante"

The Washington Post offers this report.

News Hour Interview about Dean/Public Financing with Larry Noble

The transcript is here.

"Soros's Deep Pockets vs. Bush; Financier Contributes $5 Million More in Effort to Oust President"

The Washington Post offers this report.

Bob Bauer: The final word

Bob Bauer's final reply to Ned Foley on Foley's BCRA overbreadth article in the Election Law Journal is now posted here. The three earlier papers in the series are posted on the ELJ home page. It was a very interesting exchange.

BCRA (McCain-Feingold) Opinion Wednesday?

The Supreme Court clerk's office has indicated that opinions (in a pending case or cases) will issue Wednesday. It is certainly possible, though by no means certain, that the BCRA (McCain-Feingold) decision will be among them. The sooner the better, given how the 2004 election season is gearing up. BNA's Money and Politics report notes that "Ad restrictions in the presidential election will come into effect next month in the 30-day periods prior to a January presidential primary in the District of Columbia, the Iowa presidential caucus, and the New Hampshire primary, according to the FEC. But the electioneering communication provisions were in effect from Oct. 10 in Puerto Rico, prior to that U.S. commonwealth's Nov. 9 primary election for a congressional delegate." Those ad restrictions are challenged in the BCRA case.

Touch screens and the business of getting governments to buy them

Today's Los Angeles Times features Ex-Officials Now Behind New Voting Machines*Those who led the state's ballot-count reforms now work for the firms making the equipment. The story follows Saturday's New York Times report on touch-screen seller Diebold's business and controversy.

Given the amount of money that HAVA and other sources provide for revamping voting equipment, I suppose I should not have been surprised by the extent to which conflicts have arisen over the transitions to new voting technologies.

"Who Is George Soros? Howard Dean isn't giving up much by forgoing federal matching funds. "

The Wall Street Journal offers this editorial. Howard Dean also offers this commentary. Thanks to Steven Sholk for the pointer.

"Edgier Campaign Ads Expected"

The Des Moines Register offers this report discussing BCRA's "stand by your ad" provision.

Commissioner Brad Smith's oped and the role of the FEC as interpreter of the Constitution

FEC Commissioner Brad Smith writes Stifling in Name of Reform in today's Washington Times. The oped concerns a decision the FEC had to make about how to treat a proposed advertisement in which a federal senator praises a candidate for mayor. From the oped:

Sounds innocent enough. However, under McCain-Feingold, no state or local political party, and no candidate for state or local office, can make any "public communication" that "promotes or supports" or "attacks or opposes" any federal candidate or officeholder unless paid for with federally regulated money.
Although Mr. Weinzapfel was seeking local office in Indiana, and the campaign was paying for the ad in accordance with Indiana and Evansville laws, his campaign could not run the ad if it "promotes or supports" or "attacks or opposes" Mr. Bayh.

Commissioner Smith concludes later in the oped:

It would have been very easy to conclude the ad "promotes" or "supports" Mr. Bayh — indeed, I would be hard-pressed to say it did not.
Nonetheless, I voted to approve the ad because of my belief that a straightforward reading of the statute would be blatantly unconstitutional.

Back when Brad Smith was being considered for a nomination to the FEC, I opposed the nomination. I consider Smith to be a person of great integrity and intellectual honesty, and I always believed (and continue to believe) that Smith, as FEC commissioner, would act to uphold the Constitution. The problem is that there are enough gray areas---room for interpretation of the Constitution not dictated by Supreme Court precedent---that a person's ideology necessarily plays a role in how that person will fill in the gray areas. Someone like Smith, who has written a book and numerous articles attacking the Supreme Court's interpretation of the Constitution in the campaign finance area, predictably resolves issues against regulation. The point should be kept in mind as other FEC nominees are considered for confirmation.

Public radio on democracy

Last week, public radio stations focused on issues of democracy. Ed Still has put together the links nere.

"Bankrolling a New Path to the Primary"

The Washington Post offers this report, which begins: "The decisions of President Bush and former Vermont governor Howard Dean to forgo public financing will reshape future presidential contests, encouraging ideological candidates and weakening prospects of moderates, according to strategists and observers."

"Machine Politics in the Digital Age"

The New York Times business section offers this report on the Diebold electronic voting machine controversy.

"Dean to Forgo Public Financing"

See this New York Times report.

BRCA, Negative Ads, and Vagueness

Yesterday's New York Times featured Fine Print is Given Full Voice in Campaign Ads, which considers the "stand by your ad provision of BCRA." Though Congress intended the provision to curb negative ads, the provision does not provide a means for distinguishing between negative and other ads.

The article quotes reformer Fred Wertheimer as follows:

"Who, pray tell, is going to decide which ads are positive and which ads are negative?" said Fred Wertheimer, president of Democracy 21, a campaign reform advocacy group.

In response, Joe Birkenstock here on the election law listserv notes what he sees as an inconsistency in Wertheimer's position: Wertheimer says it is impossible to tell a positive ad from a negative ad, but he supports the definition of "federal election activity" in BCRA that requires identifying ads that "promote, support, attack, or oppose" a candidate. See also Brian Svoboda's thoughts.

Intentional undervoting by minorities? And Where is Kaus on punch cards?

At a Federalist Society meeting regarding the recall that I participated in last month, Chapman law professor John Eastman raised the question of greater intentional voting by racial minorities. The suggestion was that members of minority groups might turn out to vote for certain minority candidates lower down the ballot, but fail to vote the top of the ticket. I indicated there that I did not know of any studies addressing the issue of intentional undervoting by minorities.

I have now come across a study that has examined this question and found that African-Americans do tend to undervote more than whites, but the difference is very small, a few tenths of a percentage point. See Michael Tomz and Robert P. Van Houweling, How Does Voting Equipment Affect the Racial Gap in Voided Ballots, 47 American Journal of Political Science 46, 57 (2003). The article is available to those whose libraries have an electronic subscription here.

Intentional undervoting by minorities certainly could not explain why there were about 11% of voters in Los Angeles that failed to cast a valid vote on the first part of the recall, compared to less than 1% in Alameda county, using touch screen machines, or the average 2.6% across the state (all of these are based on preliminary figures). (More on those figures here and here.)

And while we are on the subject of punch card errors, I am still waiting to hear from Mickey Kaus on his criticisms of Henry Brady. By now, I think Kaus would have to admit, Brady's position has been vindicated. Kaus told me he was going to blog about this soon after the recall, but I don't think he has.

UPDATE: John Eastman replies here. In response, let me note that I think there's no question now that (1) touch screen voting reduces intentional undervoting and (2) that minority preferences cannot explain the voting disparities between punch card counties and non-punch card counties. The statistics comparing undervoting and exit polls across to voting methods, if they hold up on final review of numbers (we don't have final numbers yet), will lead to the unassailable conclusion that punch card errors are responsible for this disparity across counties. The disparity is huge even taking touch screens out of the picture and just comparing to other voting technologies.

The Greens and Ralph Nader

Micah Sifry writes Ralph Redux? over at The Nation, which begins: "With a year to Election Day, Ralph Nader is quietly gearing up for his second serious bid for the presidency." Not all Green Party members are happy.

More on Dean and public financing

Roll Call offers A Mixed Reform Message (paid subscription required), which begins: "Democratic presidential hopeful Howard Dean threw his support behind a Congressional proposal to abolish the Federal Election Commission on Wednesday as he rolled out a long list of other campaign finance and election reform initiatives, including public financing for House and Senate elections." The New York Times editorializes Shrinking from Campaign Reform and John Samples writes a Los Angeles Times oped, Dean Might Do In Campaign Financing.

"Voinovich Can't Return Money to Ohio Felon"

The Cleveland Plain Dealer offers this report, related to the FEC action described below.

"Campaign finance law violates basic freedoms, Starr says"

The Minneapolis Star-Tribune offers this report.

More on touch screen voting problems in Fairfax County, VA

Today's Washington Post offers Fairfax County Judge Orders Logs of Voting Machines Inspected." This story is very troubling. From the article:

School Board member Rita S. Thompson (R), who lost a close race to retain her at-large seat, said yesterday that the new computers might have taken votes from her. Voters in three precincts reported that when they attempted to vote for her, the machines initially displayed an "x" next to her name but then, after a few seconds, the "x" disappeared.

In response to Thompson's complaints, county officials tested one of the machines in question yesterday and discovered that it seemed to subtract a vote for Thompson in about "one out of a hundred tries," said Margaret K. Luca, secretary of the county Board of Elections.

"It's hard not to think that I have been robbed," said Thompson, whose 77,796 recorded votes left her 1,662 shy of reelection. She is considering her next step, and said she was wary of challenging the election results: "I'm not sure the county as a whole is up for that. I'm not sure I'm up for that."

"FEC OKs New Twist on Bundling Donations"

A.P. offers this report. Those following the "WE LEAD" issue before the Commission will be interested to learn that the commission voted 5-0 to approve their proposed bundling plan.

UPDATE: A knowledgeable reader sends along the following observations about today's meeting:

On WeLead: The final version was "delayed" if you want to call it that because the Commission did not approve the original OGC draft, which did not allow WeLead to pursue their proposal. Instead of the redraft circulating on a "tally" vote - i.e. with no public circulation, comment, or hearing, several commissioners had it rescheduled for public hearing. That would have happened whether or not Mason had put forward his amendment regarding how solicitation costs should be treated. His language, which was adopted, makes the straightforward point that, if the activity is independent, the solicitation costs are not contributions to the recipient candidate, but if the activity is coordinated, they are. I am interested in the fact that some third parties are criticizing this opinion, yet even after it was renoticed for a second hearing, we did not receive comment on it.

On Voinovich: The Commission did decide that the post-BCRA restrictions (see 2 USC 439a as amended) on use of candidate campaign funds did not permit Voinovich to use his US senate committee's funds to repay contributions to his gubernatorial committee. He had already repaid contributions from this source to his Senate committee. The AP story seemed a little confusing to me on this point. Also, even when the "any lawful purpose" language was in the old statute, that didn't mean campaign funds could be used for anything - there existed then, as today, a prohibition on "personal use."

On phone banks: this issue in this rulemaking is not who PAYS for the phone bank, but how party payments for phone banks are ALLOCATED. The commission approved at 50-50 split when the message is akin to "Vote for President Jones and the entire Libertarian Team" with 50% of the expenditure allocated to the party's coordinated limit for the presidential campaign.

The Commission also certified the Missouri Green Party as a state party committee. This was approved without debate.

Thanks for writing!

What confirmation crisis?

This Los Angeles Times article confirms that there is no judicial confirmation crisis, despite loud Republican protests about selective Democratic filibusters of appellate court nominees that the Democrats have painted as ideologically extreme. The article notes that the vacancy rate among federal judges is at a 13 year low, and that President Bush's success this year is better than the success Bill Clinton had in 7 out of his 8 years in office.

Although the numbers are slightly lower for confirmation of appellate court judges (a Justice Department spokesperson says it is a 63% confirmation rate compared to an 80% confirmation rate for Clinton judges), the numbers are misleading. From the article:

[Sheldon] Goldman, the University of Massachusetts professor, said both parties have blocked prospective judges they viewed as extreme, but they have done it in different ways.

"The Republicans obstructed quietly in the committee," Goldman said. "If they didn't want to approve you, you just didn't get a hearing. The Democrats have obstructed through the use of the filibuster, which is very open and visible."

During Clinton's final six years in office, Republicans controlled the Senate, and they refused to confirm more than 60 of his judicial nominees.

When will the Supreme Court Issue Its Decision in McCain-Feingold?

Today is exactly two months since the September 6 Supreme Court oral argument in the McCain-Feingold BCRA case. Back then, I predicted that the most likely time for the Court to issue its decision and opinions would be mid-October through November. We are now in the midst of that period. I understand that the Court when it is in session usually issues opinions on Tuesdays and Wednesdays. The winter break starts December 15, and I very much expect an opinion by then, because that will be around the time that the issue advocacy provisions of the law will kick in by virtue of the first primaries and caucuses. But the Court has no official deadline by which it must decide the case.

Of course, I'll have complete coverage whenever the opinion issues.

UPDATE: Marty Lederman has explained to me that the Court also occasionally issues opinions on the Mondays after a week in which oral arguments have been held. Thus the possible scheduled dates for the release of the opinion this year are: 11/12; 11/17; 12/2; 12/3; 12/9; 12/10 and 12/15. The Court could well issue the opinion on another day if it is ready, particularly given the Congressional mandate to expedite consideration of the case.

Conference on Criminal Liability and Prosecution Under Mcain-Feingold

This conference will take place November 14th in Gewirz Hall, 120 F Street (corner of 2nd and F Street N.W.), Washington D.C. from 1:00 to 5:30pm

This conference is sponsored by Johnny Barnes, Executive Director of the Washington, D.C. chapter of the ACLU, Robert Bauer, Chair of the Political Law Group at Perkins Coie LLP, and Roy Schotland, Professor, Georgetown Law Center.

Panelists will include:

Panel 1.
What has changed? Revisiting the DOJ/FEC Relationship

* Craig Donsanto, Director, Election Crimes Branch, DOJ
* Noel Hillman, Chief, Public Integrity Section of DOJ
* Larry Norton, General Counsel, Federal Election Commission
* Roy Schotland, Professor, Georgetown Law Center
* Ellen Weintraub, Chair, Federal Election Commission

Panel 2.
Taking a Backseat? Impact Of Enhanced Criminal Penalties on Civil Enforcement

* Jan Baran, Partner, Wiley Rein & Fielding
* Robert Bauer, Partner, Perkins Coie
* Craig Donsanto, Director, Election Crimes Branch DOJ
* Larry Norton, General Counsel, Federal Election Commission
* Michael Toner, Commissioner, Federal Election Commission

Panel 3.
Prosecuting Politicians or Political Prosecutions? The Criminal Bar's Perspective

* Monika Bickert, Trial Attorney, Public Integrity Section, DOJ
* Stan Brand, Partner, Brand & Frulla
* Marc Elias, Partner, Perkins Coie
* Michael Horowitz, Partner, Cadwalader, Wickersham & Taft, member of the U.S. Sentencing Commission, formerly Chief of Staff, Criminal Division, DOJ
* Eric Yaffe, Partner, Schmeltzer, Aptaker & Shepard, formerly Deputy Chief of Campaign Financing Task Force, DOJ

Panel 4.
Don't Worry Be Happy? A Civil Liberties View

* Spencer Overton, Professor, National Law Center, George Washington University
* Karl Sandstrom, Of Counsel, Perkins Coie, former FEC Commissioner
* Fredrick A.O. Schwarz, Brennan Center, NYU School of Law

To RSVP
Please e-mail to Marcia Scott or phone: 202.654.1752

(Anyone attending that conference might also try to attend the Symposium on North American Election Law taking place the next day in D.C.)

"Anonymous Political Ads Seen as Legal"

NJ.com offers this article on whether a Northampton City Council member may be punished for failing to disclose his election committee's names on campaign mailers. The local prosecutor suggests that the disclosure requirement is unconstitutional. In fact, that is probably a misreading of the applicable Supreme Court precedent, which appears to bar disclosure of the identity of someone making a face-to-face solicitation or spending small sums on campaign speech but allow states to require disclosure in mass mailings, particularly those sent by candidates. More information in Chapter 21 ("Campaign Finance Dislcosure") in the Lowenstein & Hasen election law casebook.

Rational Republicans Threaten 30-hour debate on judicial nominations

Roll Call offers this story (paid subscription required), which includes the following: "Senate Republicans said that their so-called “30-hour plan” — at least 30 straight hours of uninterrupted debate on judges — is set to begin sometime Wednesday, probably late in the afternoon, and carry on until nearly midnight Thursday. They’re even holding out the option of going into the wee hours of the morning Friday if their troops are up for it." This is perfectly rational Republican strategy: try to increase the salience of the issue of judicial nominations without actually doing anything to change the filibuster rules.

UPDATE: Larry Solum expresses similar sentiments here.

"Campaign Finance System May be Facing Its Endgame"

The New York Times offers this report on the presidential public financing system. See also this Washington Post report and this Roll Call report (paid registration required).

My book officially released by NYU Press

Though the book has been available for a few weeks, NYU Press officially released my book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore, this week. They also have posted the Introduction and Table of Contents. Amazon has the book here and Barnes and Noble has the book, at a 20% discount, here. You can also see a copy of the book's cover now on the right side of the blog.

Here is the description from the book's jacket:

In the wake of the 2000 Florida election controversy, many Americans have questioned whether and how the Supreme Court should decide election law disputes. In the first comprehensive study of the issue since the Supreme Court decided Bush v. Gore, Richard L. Hasen rethinks the Supreme Court's role in regulating elections.

Hasen, drawing on the case files of Supreme Court Justices in the Warren, Burger, and Rehnquist courts, roots the Supreme Court's intervention in political process cases to the 1962 case Baker v. Carr, in which the Court first agreed to consider claims that a state legislature had violated the Constitution by failing to draw legislative districts with equal populations. The case opened the courts to a variety of election law disputes, to the point that the courts now control and direct major aspects of the American electoral process.

The Supreme Court does have a crucial role to play in protecting a socially constructed "core" of political equality principles, concludes Hasen, but it should leave contested questions of political equality to the political process itself. Under this standard, many of the Court's most important election law cases from Baker to Bush have been wrongly decided.

Seattle retains at-large city council, rejecting districting

The Seattle Post-Intelligencer offers Ballot Question: At-large Elections Appear to be Staying.

"Voting Machine Glitches Prompt GOP Challenge"

See this Washington Post report out of Virginia, which begins: "Widespread problems with new touch-screen voting machines delayed election results in Fairfax County Tuesday night and led to a legal challenge by Republican officials."

"Democrats Throw Spirit of Reform Out the Window"

Byron York offers this oped in The Hill, focused on the campaign finance activities of George Soros.

Nonpartisan election plan defeated in New York City

See this New York Times report.

"Dean Considers Plan to Forgo Public Financing"

The New York Times offers this report. Perhaps the most interesting aspect is that Dean apparently will abide by a decision on whether to opt out of the public financing system made by those who will vote on the question at his campaign website.

Today is Election Day

In many places, today is Election Day. In Los Angeles County, elections are being conducted using the new (and temporary, until touch screens are available) Inka-vote system. That systems looks like the punch card system, except voters mark their ballots to be optically scanned rather than punch through the chads. Voting technology and other election day issues have been raised in a number of states. (See the reports for today on Electionline.org.) More coverage of these issues if events warrant.

California delays certification of some electronic voting machines

A.P. offers this report, which begins:

New touchscreen voting machines failed to win the approval of a state advisory panel, throwing into question multimillion dollar contracts between the company that built them and at least three counties with plans to use them as early as next year.

Instead of certifying the Diebold AccuVote-TSX system as expected, the advisory panel to the secretary of state said Monday it would investigate uncertified software and hardware that may have been used in a recent election.

First Post-Recall Schwarzenegger Fundraiser Set

The Los Angeles Times offers 1st Benefit is Set for New Gov. It includes the following information on Ca. Governor-Elect Schwarzenegger's fundraising dinner:

The invitation says donors giving $21,200 are entitled to two tickets for dinner, plus a "reception with photo opportunity" with Schwarzenegger. Donors giving $10,000 are entitled to a single ticket to the reception "with photo opportunity," plus 20 tickets to a general reception. People giving $500 may attend the general reception, but not the private dinner or host reception.

"Barriers, Conundrums and Revenue for Attorneys"

Andrew Glass offers this opinion piece in The Hill on 2004 campaign financing. It includes the amusing redefinition of BCRA (the Bipartisan Campaign Reform Act) contained in this post's heading.

Misleading election law headline

See here. It is a petition for cert.; nothing more.

"Aussies Do It Right: E-Voting"

Wired Magazine offers this report. Thanks to a blog reader for pointing this out.

More on Texas redistricting lawsuits

The Houston Chronicle offers this report. Thanks to Jim Dedman for the pointer.

"One Year Out: No Time to Waste on Election Reform Funding"

Representatives Bob Ney and Steny Hoyer, co-sponsors of the Help America Vote Act, offer this Roll Call oped (paid subscription required). Among other things, HAVA provides federal assistance for states to upgrade their voting technology. From the piece:

While last year’s appropriation for election reform was generous, it still fell $660 million below the amount authorized. And this year, only $500 million was included in the fiscal 2004 Transportation and Treasury appropriation bill for election reform. Last week, Sens. Chris Dodd (D-Conn.) and Mitch McConnell (R-Ky.) succeeded in amending that legislation to provide an additional $1 billion for federally mandated election reform. Without a doubt, that was a strong step in the right direction.

However, in the year-end negotiations on appropriations bills, we intend to urge our colleagues on both sides of the aisle and both sides of Capitol Hill to fulfill the authorization provided for in the Help America Vote Act by appropriating $1.86 billion in addition to the $500 million currently in the Transportation and Treasury bill.

Diebold controversy reaches New York Times

See "File Sharing Pits Copyright Against Free Speech."

John Hart Ely and Election Law

Professor John Hart Ely died last week (his New York Times obituary is here). Ely was one of the most important constitutional scholars of his generation, known especially for his 1980 book, "Democracy and Distrust."

His book had a profound effect on the development of election law. In the book Ely argued that "unblocking stoppages in the democratic process is what judicial review ought preeminently to be about." Though the roots of the argument trace back at least to the famous footnote 4 in the Carolene Products case, Ely offered the most sustained defense of cases such as Reynolds v. Sims, arguing that judicial intervention in apportionment matters was necessary because the political process was stuck. Ely's process theory, it is safe to say even today, is election law orthodoxy. Indeed, one can trace to Ely the currently fashionable structural "lockup" or "political markets" approach to election law cases put forward most forcefully by Sam Issacharoff and Rick Pildes.

I ultimately believe that Ely's process theory for judicial review---and the later structural theories---are inadequate theories of judicial review in election law cases. Ely's process theory fails for three reasons: First, the theory has not been successful in limiting judicial power: courts have not confined themselves to intervening in election law cases only in the face of political market failure. Bush v. Gore is the most recent example of this phenomenon. The second problem with process theory is that it masquerades as a purely procedural rather than a substantive basis for review of political cases. The third problem with process theory is that, despite its implicit substantive dimension, it is a shallow theory. It says nothing about how the courts should intervene in the face of political market failure.

You can read more of these three critiques in the introduction to my book (beginning at page 4), available free online here. Chapter 5 of my book, "Equality, Not Structure," challenges the political markets approach (the chapter is not available on line).

The fact that Ely's work is still being debated today as strongly as it was when his book first came out in 1980 is testament to the power of his ideas, and the simple elegance of his writing. His contributions to constitutional law (and election law) will be missed, even by those who did not always agree with him.

"Mock the Vote"

Los Angeles City Beat offers this report on ballot problems during the California recall, particularly focusing on touch s