Ca. Secretary of State Bars Use of Diebold Machines

See this early A.P. report.

FEC Commissioners Thomas and Toner Propose Final FEC Rule on 527s

Bob Bauer has posted the proposed final rule, as well as a bit of explanation about the rule, here. It is not at all clear that this rule, or something like it, would obtain a vote of a majority of the commissioners. From reports of last month's hearing, as well as press reports, it looks as though Commissioners McDonald, Smith, and Weintraub may not be willing to sign on to a rule such as this one. It will take a vote of four commissioners to enact a final rule.

Law.com on Vieth

See here (free registration required).

Betting on the Presidency

Ed Feigenbaum pointed me to this news release from Casino Fortune.com, which begins: "Internet Gamblers continued to vote with their Return keys yesterday as John Kerry lost a commanding lead to George W. Bush in an online race for $100,000 in campaign contributions. CasinoFortune.com, one of the leading Internet casino sites, continued its nationwide poll amongst Internet gamblers for the upcoming Presidential election. Thus far, over 11,000 voters have logged on and cast a ballot to decide who receives a campaign windfall."

If this is serious, the release does not indicate how a foreign corporation gets to make contributions to a presidential candidate and his party.

Sen. McCain Calls on Brad Smith to Resign from FEC

Smith has rejected the call. BNA has the details here (paid subscription required). The dispute centers on Smith's views of how to treat 527 organizations during the upcoming rulemaking decision of the FEC. BNA quotes McCain as saying that 527s are "openly flouting the law and openly spending soft money for the express purpose of influencing the presidential election while the FEC sits on its hands once again."

"Ghost of 2000 Haunts Forthcoming Poll"

The Financial Times (UK) offers this report.

"No Whistle from the High Court"

The Berkshire Eagle offers this editorial on Vieth.

Another Vieth Press Release

See here.

Federal monitors in East Chicago (Indiana) primary

See here. (Thanks to Ed Feigenbaum for the pointer.)

Boston Globe on Vieth

I missed this story in my earlier roundup. Thanks to SCOTUSBlog for the pointer.

Dallas Morning News Story on Vieth and the Texas Gerrymandering Case

See here. Great quote from Nate Persily: "'The question for Justice Kennedy right now is, if what's happened in Texas is OK, is there really any circumstance under which partisan gerrymandering is unconstitutional?' he said." My view: I'll be shocked if Justice Kennedy votes to strike down the Texas redistricting on partisan gerrymandering grounds (putting aside challenges raised under the Voting Rights Act). Justice Kennedy was certainly aware of what was happening in Texas when he wrote his decision; the Vieth plurality even cites to the lower court opinion in the Texas case.

"Panel Won't Pull Plug on E-Voting"

The Oakland Tribune offers this report. See also this Los Angeles Times report.

More Vieth Coverage and Commentary

The New York Times (I'm not sure why David Rosenbaum refers to Justice Scalia's opinion as the "controlling opinion") (and see this editorial); The Wall Street Journal (thanks to Steven Sholk for the pointer); The Los Angeles Times; The Washington Post; Chicago Sun-Times; Philalelphia Inquirer; Houston Chronicle.

In the blogosphere, Bob Bauer has posted his thoughts here ; Ed Still is here; Marty Lederman is here. I am much more skeptical than Marty that even state legislators who feel duty bound to uphold the Constitution will have much problem engaging in the most partisan of gerrymanders. It is not as though Justice Kennedy's opinion gives much hope of anyone ever coming up with a standard that would satisfy him, having rejected the standards in Bandemer, the plaintiffs' standard, and the three proposed dissents' standards.

Democrats' Spin on the loss in Vieth

See this press release.

"Gore Giving Over $6 Million to Democrats"

A.P. offers this report. Thanks to David Ettinger for the pointer.

More News Reports on Vieth

Knight-Ridder; A.P.; Christian Science Monitor; Washington Post. More to come.

Bauer on Hasen-Ortiz Debate

See here.

10th Circuit Strikes Down Campaign Expenditure Limits in Albuquerque

See here. Thanks to Willy Jay and other readers for the pointers. In my quick look at the decision, it does not appear that there is any discussion of footnote 48 of McConnell providing an opening for arguing that campaign expenditures may now be limited consistent with the First Amendment.

Some initial thoughts on the Vieth case

When the Supreme Court decided to hear Vieth v. Jubelirer, it was unclear why they took the case. After all, in the 1986 Davis v. Bandemer case, the Court had held claims of partisan gerrymandering were justiciable (i.e., could be heard by courts), but the Court did not come up with a standard that had any teeth. Most lower courts applied the test of the Bandember plurality, which required showing that a political party had been essentially shut out of the political process by redistricting. Under that standard, lower courts (with a single outlier discussed in the Vieth plurality opinion) never found an unconstitutional partisan gerrymander.

So it was unclear if the Court took the case to give the Bandemer test some teeth or to reverse its justiciability holding.

It turns out there are now four votes to give Bandemer some teeth (Stevens, Souter, Ginsburg and Breyer)---though there are three different opinions on how to do so---and four votes for nonjusticiabilty.

So the crucial vote is Justice Kennedy's vote. Justice Kennedy's opinion is not very clear, but here is what is clear from what he says:

(1) He agrees with the plurality that the Bandemer test is unworkable, as is the test proposed by the Pennsylvania plaintiffs as well as the three alternative tests proposed by the dissenting Justices. (See Kennedy slip op at 3.)

(2) He disagrees with the plurality that these cases should now be declared non-justiciable, while acknowledging that "those arguments may prevail in the long run." (Kennedy slip op at 4.)

(3) He suggests that there is something "not permissible" (p. 11) about partisan gerrymandering, believes the "standard" to be applied is "the Fourteenth Amendment standard," and he awaits the development of a "subsidiary standard [[that] could show how an otherwise permissible classification, as applied, burdened representational rights." (p. 9.)

(4) Kennedy offers two hints toward showing such a standard. First, it might be helpful to see "discussions on principles of fair districting discussed in the annals of parliamentary or legislative bodies." (p. 3.) Second, an argument for finding a rights violation might better be found in the First Amendment rather than the 14th amendment: "If a court were to find that a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the state shows some compelling interest." But, right after this statement, he adds: "Of couse, all this depends first on courts' having available a manageable standard by which to measure the effect of the apportionment and so to conclude that the State did impose a burden or restriction on the rights of party's voters." Given that last sentence, it is hard to see what is gained by the shift to the First Amendment.

(5) So is the plurality right that lower courts "must treat [Justice Kennedy's vote] as a reluctant fifth vote against justiciability at district and statewide levels--a vote that may change in some future case but that holds, for the time being that this matter is nonjusticiable."? I think this overstates it a bit. I think plaintiffs raising partisan gerrymandering claims now will need to come up with some theory of partisan fairness based in the First Amendment and in historical practice, and argue that the standard is both different from the standards rejected in Vieth and also sufficiently manageable to separate fair from unfair plans. No doubt, most, if not all, of those attempts will fail, but the Supreme Court remains open for a new argument, particularly, I would think, in the case of more egregious partisan behavior than we have thus far seen.
Note: In my original post, I had referred to the plurality opinion as the "majority" opinion a few times. I have now corrected that. Thanks to Trevor Potter for noticing the problem.

Breaking News: Vieth opinion released

Here's the report from Marty Lederman sent via Amy Howe. More to come:
Marty Lederman is at the Court and asked me to let you know (if you hadn’t heard already) that the Court affirmed 5-4 in Vieth. Justice Scalia wrote for the plurality, while Kennedy concurred in the judgment in what would be the controlling opinion. The plurality would overrule Davis, but Kennedy apparently writes that he would not rule out all partisan gerrymandering claims. There's a bit more detail here. More to come.
Update 1: Here is the early A.P. report, confirming that Justice Kennedy's opinion appears to be decisive here.
Update 2: Those with Lexis access can find the opinion at 2004 U.S. LEXIS 3233. Thanks to Luke McLoughlin for the pointer.
Update 3: Westlaw: 2004 WL 894316 (Thanks to Benjamin Ledsham for the link).
Update 4: The Supreme Court has posted a pdf of the opinion here. And here is an updated A.P. report.
Analysis to follow. There is a lot to digest here.

Stand By Your (Phone?) Ad

See this report out of South Dakota.

"Justice Department Reviewing Aschroft; FEC Data Pointed to Possible Violations"

The Washington Post offers this report.

"McCain-Feingold's Internet Loophole"

Chris Sullentrop offers this report on Slate.

Columbia Journalism Review Website Asks for More Press Coverage of the 527 Issue

The Campaign Desk website of the Columbia Journalism Review offers this posting, which begins: "A largely behind-the-scenes lobbying effort is underway that could affect the manner in which campaigns are financed during this election, and many to come. That effort may also have the unintended effect of rocking the non-profit world to its very foundations."

Punch Card Errors and the Schwartzman Effect

Readers who remember this post about errors in the California recall election may wish to look at this working paper, Do Punch Cards Promote Voter Error? Evidence from the California Recall Election by Thomas S. Dee of Swarthmore College. Here is the abstract:

Conventional evaluations of voting systems have focused on the prevalence of ballots for which no vote can be recorded (i.e., “residual” votes). However, recorded votes that were mistakenly cast are another potentially important - but less easily measured - source of error. In this study, I present evidence that a relatively small but non-trivial number of voters in the recent California recall election mistakenly voted for the four candidates positioned next to the two major candidates on the ballot. I then examine whether the prevalence of these errors was influenced by the type of voting technology used (i.e., punch card, optical scan, touch screen). The results of this analysis are consistent with conventional studies of residual votes and indicate that punch card systems significantly increased the prevalence of these voter errors (i.e., by at least a third).

"Old New Voting Machine, Same Old Fraud"

I usually don't link to international election law issues (for example, I've been ignoring election controversies currently brewing in Hong Kong, South Korea, Taiwan, Iran and Iraq). But this story out of India in today's New York Times is worth reading to put into perspective some of the voting problems in the United States.

Bauer on Party Independent Spending

Responding to this post, Bob Bauer writes here on independent party spending post-BCRA.

Guy Charles on the Constitutionality of Limiting Contributions to 527s

See his Findlaw column here.

"Feds Asked to Suspend PAC Probe"

The Houston Chronicle offers this report, which begins: "A national conservative group is asking federal prosecutors to drop an investigation into the financial activities of a political committee founded by U.S. House Majority Leader Tom DeLay, R-Sugar Land."

"N.J. lawmakers to Change 'Corruption Culture'"

1010 WINS offers this report. See also this New York Times report.

"Measure Fails to Qualify for Ballot"

The Los Angeles Times offers this report, with the subhead: "Supporters of an initiative that would bar illegal immigrants from receiving many public services announced Monday that they had failed to qualify the measure for the ballot."

"Charity-Hosted Revelry Not Just for Republicans"

The Washington Post offers this report, which begins: "Public watchdog groups have criticized Republicans for using a charitable group to help host lavish parties at this summer's presidential nominating convention, but Democrats are now employing the same strategy."

"Washington Group Files Complaint Over Contributions to Martinez"

The Daytona Beach News-Journal offers this report, which begins: "A watchdog group filed a complaint with the Federal Elections Commission against Republican Senate candidate Mel Martinez on Monday, saying the former U.S. Housing secretary benefited from a luncheon held by a Cuban exile group before he announced his candidacy." Thanks to Alfredo Garcia for the link.

Anderson v. Spear continues

Following up on this post, Kentucky election officials announced they will seek cert. in Anderson v. Spear. See here. Thanks to Ed Feigenbaum for the pointer.

Birkenstock to Teach Law of Politics at Pepperdine

Joseph Birkenstock, formerly with the DNC and now special counsel at Smith Kaufman LLP, will be teaching a course on the Law of Politics as an adjunct this fall at Pepperdine Law School.

"Still the Same Old 'Shakedowns'"

Patrick Chisolm offers this commentary in the Christian Science Monitor.

"Supreme Court Orders Campaign Finance Law Review"

A.P. offers this report.

"Baum's Bum Deal"

The San Francisco Examiner offers this editorial on a Green Party candidate's struggle to get on the ballot in San Francisco. Thanks to Richard Winger for the pointer.

Third Edition of Election Law--Cases and Materials Due Out in August

Carolina Academic Press has posted an announcement for Daniel Hays Lowenstein and Richard L. Hasen, Election Law--Cases and Materials (3rd edition), due out in time for fall classes:

The revised third edition of Election Law adds to the second edition’s already comprehensive treatment of issues of election regulation and reform. New materials include: coverage in depth of the Bipartisan Campaign Reform (McCain-Feingold) Act of 2002 and of McConnell v. Federal Election Commission, the Supreme Court’s decision upholding most of the BCRA and pointing the way toward the constitutional law of campaign finance in the 21st century; coverage of recent developments in redistricting, voting rights and racial gerrymandering, including the 2004 Pennsylvania redistricting decision, the Supreme Court’s first consideration of partisan gerrymandering since 1986; and a streamlined treatment of legal and political issues related to the Florida recount controversy, together subsequent applications of Bush v. Gore, by the lower courts, including its application in the 2003 California recall election.

Like its predecessor, Election Law, 3rd edition covers the right to vote and voter turnout, legislative districting, the Voting Rights Act and the racial gerrymandering cause of action, ballot propositions, constitutional rights and obligations of political parties, bribery, regulation of campaign speech, campaign finance, and term limits.

This interdisciplinary book is unparalleled in its combination of materials drawn from law and political science. Lowenstein and Hasen include edited versions of most of the Supreme Court's most important election law decisions of the last four decades, as well as a generous sampling of lower federal court and state decisions, many raising novel and challenging issues.

The book is intended to give students, legislators, attorneys and general readers a more sophisticated understanding of issues central to citizenship in a democracy. A teacher's manual is available and cumulative supplements will be provided, typically on an annual basis.

"Untested Election Reforms Could Turn 2004 Presidential Race Into a Debacle"

On April 21st, the Los Angeles Daily Journal published my oped on the potential for voting technology problems in November. I have posted it with the permission of the newspaper.

"Florida Legislators Take On a Voter Right"

See this New York Times article on a proposal in the Florida legislature to submit to the voters a proposed constitutional amendment to limit Florida voters' chance to further amend their constitution.
As I recall from some research I did for a conference on initiatives (held at USD last June---papers out soon in The Journal of Contemporary Legal Issues), there appear to be no instances of the people ever voting to give up the power of initiative once given to them.
One of the most interesting aspects of today's newspaper article is the statement: "The proposal in the House would put the question to a vote in the general election in November, but the Senate version would do so in the August primary elections, when the state's many independent voters could not weigh in."
Could it really be that state law could exclude independent voters from voting on this question? If so, state law would seem to be clearly unconstitutional. Perhaps the newspaper story is wrong.
UPDATE: Dan Smith writes that the reporter got it wrong. Independents may vote on a ballot featuring only ballot measures, rather than primary races. Dan's point is that turnout among independents may be lower in a primary race.

Supreme Court Sends Back Fourth Circuit Campaign Finance Case for Reevaluation

Marty Lederman notes here that the Supreme Court has granted review in Leake v. North Carolina Right to Life and remanded the case for reconsideration in light of its recent campaign finance decision in McConnell v. FEC. UPDATE: Here is the A.P. report.

Three from Roll Call

See

Congressional 527s are a Flop.

Continuity Vote Splits Parties.

Special Counsel Cautions Groups on Voter Registration, which begins: "The U.S. Office of Special Counsel has cautioned labor unions and other groups that they’ll have a hard time legally conducting voter registration activities on federal grounds once they’ve endorsed a candidate for partisan political office."

Paid subscription required for each article.

Will Florida Make It More Difficult to File Election Law Complaints?

See here.

"Electronic Voting Results Questioned"

The Napa Valley Register offers this report.

"Texas GOP May Have Broken State Finance Law"

A.P. offers this report.

"Bush-Cheney Misassumptions"

The Washington Times offers this oped on President Bush's decision to stop fundraising. It ends: " In today's world, $170 million to $180 million won't begin to meet the challenge being organized by Mr. Kerry and his allies."

Winger oped on California primary initiative now web posted

See here.

"Californians consider granting 14-year-olds the right to vote"

The Boston Globe offers this report.

Rehearing Denied in Anderson v. Spear

Following up on this post, J.J. Gass informs me that petition for rehearing has been denied in this case. We will see if Kentucky files a petition for cert. in the Supreme Court. Given how obviously wrong one aspect of the case is (see my views here), this could be a good candidate for a cert. petition. Still, perhaps the Court won't want to wade back into these waters again so soon.

"Players May Have Changed but the Money Game Goes On"

George Skelton offers this column. Notable quote on proposed public financing for California: "Upstairs in the Capitol at that moment, a public financing bill was getting a "social promotion" — being advanced by the Assembly Elections Committee. It has no prospect of passing the Legislature. It'll ultimately morph into a ballot initiative. Indeed, if committee members had believed it might be enacted, the measure never would have survived." Thanks to Bob Stern for the pointer.

Former DNC Redistricting Counsel to Teach Election Law Course at Touro Law School

Jeff Wice has been hired by Touro Law School to teach its first Election Law course. Starting this Summer semester, he will be an Adjunct Professor.

A Compromised Voting System"

The New York Times offers this editorial on California's electronic voting controversy.

"DNC Studies Independent Unit to Run Kerry Ads"

The Los Angeles Times offers this report.

Scalia Recusals and Mississippi Redistricting Case

Don't miss this Los Angeles Times report (link via How Appealing).

Catching Up Department

Here are some developments occurring while I was traveling:

Second Circuit Holds Felon Disenfranchisement Law Does Not Violate Section 2 of the Voting Rights Act. Howard Bashman has the details here, including a note that the three judge panel, noting a circuit split, urged the Supreme Court to resolve the issue.

California Secretary of State Concludes Two Days of Hearings on Possible Decertification of Electronic Voting. Dan Tokaji links to the relevant articles and offers his take here.

Smith and Hayward on 527s FEC Commissioner Brad Smith and Allison Hayward from Smith's office have written "Boomerang! Republicans Should Not Try to Beat Democrats at their Own Campaign Finance Game," appearing in the May 3 National Review. (Thanks to James Cooper for the pointer). The article does not appear to be available online. Here is a snippet of this must-read piece:

If the FEC adopts a broad rule regulating interest groups, including 527s, that decision will significantly expand the regulatory regime, and capture liberal and conservative groups alike. When it comes to campaign finance, Republicans should go back to their deregulatory roots. Republicans thrive when the intellectual climate supports greater freedom and smaller government. Campaign-finance reform passed Congress, and was upheld by the Supreme Court, because groups hostile to freedom spent hundreds of millions of dollars to create an intellectual climate in which free political participation was viewed as a threat to democracy. To even hope to restore these lost freedoms, the case must be made that political speech is good and proper — even when remarkably unfair in its allegations, even when funded by George Soros. The party of political liberty and limited government should not contribute to an anti-freedom, pro-big-government intellectual environment for some uncertain political gain.

Responses to My L.A. Times oped See these letters to the editor published today.

MoveOn.Org to Limit Donations to $5,000 This Seattle Times article is not clear on whether Moveon will be phasing out its 527 or exactly what it plans to do with the donations it has already received. It is an interesting move given the strong possibility that the 527s will not be treated as political committees subject to the $5,000 contribution limit during this election cycle.

Programming Note

Off to the Notre Dame symposium. Regular programming resumes Monday.

"Bill to ID Judicial Donors Gets Big Push"

The Cincinnati Enquirer offers this report.

"Diebold Apologizes for Failure"

The Oakland Tribune offers this report, which also covers a hearing on electronic voting machines by the California Secretary of State. In related news, the Tribune also offers Judge: Tribune Must Turn Over Legal Memos.

U Mass Center for Public Policy Releases Report on Maine's "Clean Money" Public Financing System

See this report by Ray LaRaja.

"Push for Voting Changes May Not Cure All Ills"

The Wall Street Journal offers this report, as well as an interactive 50-state map of election procedures and machinery in the 50 states. Thanks to Steven Sholk for the link.

"Money Screams"

Dan Kennedy offers these thoughts in the Boston Phoenix, with the following subhead: "Thirty years of campaign-finance reform have brought us confusion, loopholes, cynicism, and an erosion of free speech. It’s time to try something new." It has a very interesting discussion of Moveon.org's 527.

"Will California Voters Protect Political Minorities?"

Richard Winger offers this oped in the San Diego Daily Transcript (paid subscription required).

Another Great Election Law Hire

Widener University has hired Michael Dimino, who will be teaching election law in the fall.

"New Voting Equipment Didn't Pass State Muster"

The Indianapolis Star offers this report, which begins: "Marion County's optical-scan voting system was not ready for its debut last fall because it used unapproved software the manufacturer later tried to replace in a cover-up, Marion County Clerk Doris Anne Sadler said Tuesday. The revelation, which came two weeks before the May 4 primaries, raised questions about the Omaha-based company, Election Systems & Software, that provides voting equipment to 41 counties and more than half of Indiana's registered voters." Thanks to Rick Dietz for the pointer.

Another Great Entry Level Election Law scholar

Beth Garrett tells me that Michael Kang will be going to Emory next year.

"Candidates' Cash Gap Narrows"

The Wall Street Journal offers this report. Thanks to Steven Sholk for the link.

Public Financing Bill in California Clears Hurdle

See this Los Angeles Times report.

527 to Coordinate with Kerry?

See this report in the New York Sun.

"Green Party candidate sues election officials; Pelosi rival says she qualified for ballot"

The San Francisco Chronicle offers this report. See also here.

Apparently No Vieth Opinion Today

See here.

Kerry, Third Party Funds Blow Away Bush"

UPI offers this report.

Beldar Blog on Coverage of the Texas Redistricting Case

See here.

Brookings Redistricting Conference web page

A web page for "Competition, Partisanship, and Congressional Redistricting," the conference held at Brookings last Friday, is now available. A webcast and four of the five papers presented at the conference are available here. Alan Murphy of Brookings writes: "A full-length transcript should be posted by the end of this week. In the coming days, we also plan to upload Kim Brace's paper on redistricting technology and a webcast of the fifth panel. Please note that the papers posted on our site are drafts and are not for citation or publication. Authors will make extensive revisions before the papers are brought together to form an edited volume on congressional redistricting."

"No Vote, No Power"

See this article on Alternet by Ludovic Blain.

"Questions Raised Over 2003 Election"

See this news out of Indiana. Thanks to Rick Dietz for the pointer.

Noble Replies to Bauer on Bauer-Smith Exchange

Following up on this post, Larry Noble sent the following message to the election law listserv, and gave me permission to post his message here:

I don’t normally feel a need to respond to every bit of propaganda and advocacy Bob Bauer’s espouses on behalf of his party committee and 527 clients. However, Bob’s commentary on his Web site (and referenced on this Listserve) on the debate I had with FEC Chairman Smith during the 527 hearings, as well as his attack on the consistency of my position and my motives, does move me to respond. Since I suspect Bob won’t post my response on his Web site (though he might if he was bootlegged a draft, as he did with a draft of our comments to the FEC), I am submitting it here for anyone interested.

First, Bob -- echoing FEC Chairman Smith -- references a letter to the IRS that I co-signed last year which, according to Bob, shows that I have previously taken the position that 527 organizations are not considered political committees unless they engage in express advocacy. I have always acknowledged, and did so at the FEC hearing, that since 1999 there have not been four votes on the Commission to use any standard broader than express advocacy in determining whether any organization is a political committee. Since that was (and apparently remains) the position of the FEC, there is nothing at all inconsistent in my constructing an argument to the IRS based on how the FEC is actually interpreting the law, while later arguing to the FEC in a rulemaking that its interpretation is simply wrong -- contrary to how it previously interpreted the law, contrary to the statute and contrary to the Supreme Court’s analysis of that statute.

Bob also attacks my consistency because of how 527’s are described on the CRP Web site. Again, that brief description is based on how the FEC is now (wrongly) interpreting the law. Given our audience and the purpose of that section, I did not feel it was necessary to point out the FEC’s error in that section. However, we are changing the wording to make it clear this is how the FEC is interpreting and applying the law.

Bob (again echoing Chairman Smith) also cites my position on 501(c) organizations as somehow changing as the debate has progressed. Again, the only way Bob can find some inconsistency is by misstating my position. What I have consistently said is that given the timing of this rulemaking and the activity that is going on, the FEC should now focus on the 527s. I have never said that 501(c)’s should be given some special exemption and not be regulated if their conduct falls within the statute. However, as I said at the hearing, given the law and what the Supreme Court has said, an express advocacy test should be applied to 501(c) groups.

As long as Bob is looking for apparent inconsistencies, rather than dealing with the substance of the arguments, he might want to look at his own position in 1999 letter he wrote to then Attorney General Reno asking for a grand jury investigation of Congressman Delay. In that letter, Bob writes:

“According to [a Roll Call] article, Congressman DeLay and others have begun to raise $25 million so that [the Republican Majority Issues Campaign] can finance issue advocacy advertisements and get-out-the-vote activities. This organization plans to finance these activities from donations raised outside of the [FECA] source limitations and amount restrictions, and without regards to FECA’s registration and reporting requirements. The result is an organization that is claiming tax-exempt status as a “political organization” under section 527 of the Internal Revenue Code, but which is willfully refusing registration and reporting of expenditures and contributions received.” (Emphasis added.) (The full letter can be found here.)

I will not attack Bob’s motives nor call him “opportunistic” for now rejecting a legal analysis he used when he called for a criminal prosecution of Congressman DeLay. I am willing to give him the benefit of the doubt and assume that when he wrote that letter he believed that 527 status was relevant to the question of whether an organization was a political committee and that the FEC was not applying an express advocacy test to 527’s. It is not for me to speculate on why he has now changed his position.

My consistent position while at the FEC and throughout this process has been that the FEC wrongly defaulted to an express advocacy standard for political organizations in 1999, based on a misreading of Buckley by certain Commissioners. Now that the Supreme Court in McConnell has reiterated its previously stated ruling that groups with a major purpose to influence elections, including section 527 “political organizations,” can be subjected to a broader standard than other groups, it is time for the FEC to correct its past misinterpretations and once again apply the law correctly, as it did prior to 1999. It is that simple.

Finally, a few words about the personal tone this debate has taken. I was surprised when Chairman Smith personally attacked me during the hearing, and I appreciated his later apology. Now Bob has taken up the attack. It makes me think of the saying that if you don’t have the facts, argue the law; if you don’t have the law, argue the facts. In Washington, you need to add that if you have neither, attack the credibility of your opponent.

Western Knight Center seminar on covering campaign finance

A few weeks ago I participated in a symposium for journalists held at USC-UC Berkeley's Western Knight Center for Specialized Journalism. A number of other campaign finance specialists participated as well. You can find general information here and some Powerpoint presentations here.

Bauer on my oped calling for public financing

See here, where Bob writes that "there is no basis for the belief that in the current circumstances, or any time soon, a workable political majority for public financing will develop." I agree that this is true on the federal level. But states and localities continue to implement public financing programs (The California Legislature is considering a "Clean Money" option to go to the voters: B 2949 (Hancock), The Clean Money and Fair Elections Law. The supporters of the measure have set up this website.) I hope that one of the measures on the state or local level will try public financing using a voucher system, rather than a threshold system that gives all candidates who cross the threshold (usually by collecting a number of signatures and token donations) equal public financing.

Election law entry level hires

Chicago has hired Adam Cox and USD has hired David Law. (See here, Larry Solum's list in construction of entry level hires.) Both Cox and Law are very promising election law scholars. If you have more information on other election law hires, pass it along.

"BUSH-CHENEY 2000 TO PAY $90,000 CIVIL PENALTY"

The Federal Election Commission posted this press release. From the press release: " According to the conciliation agreement, Bush – Cheney 2000 held a bank account designated “Bush-Cheney 2000, Inc. – Media.” After the November 7, 2000 presidential election, the Committee redesignated this bank account “Bush-Cheney 2000, Inc. – Recount Fund” and used the account to raise funds and pay costs associated with the recount. However, the Committee failed to include that activity in disclosure reports filed with the Commission. " Thanks to Alfredo Garcia for the pointer.

Petition for Rehearing Denied in Majors v. Abell

See here (docket entry for 4/7/04). This is an important case on the constitutionality of campaign finance disclosure laws post-McConnell. The original Seventh Circuit opinion is here. I do not know if the plaintiffs will file a petition for certiorari with the Supreme Court.

"Western Democrats Eye Revival"

Roll Call offers this article (paid subscription required), which begins: "A new regional party committee called Democrats for the West is seeking guidance from the Federal Election Commission on how the 527 group fits into the campaign finance regulatory scheme and whether the group — spearheaded by a coalition of nine Democratic state party committees — will be able to raise both soft and hard money."

"Diebold Knew of Legal Risks"

The Oakland Tribune offers this report, with the following subhead: "Attorneys warned firm that use of uncertified vote-counting software violated state law."

"Bush Campaign Spent $50 Million in March"

The Washington Post offers this report, which begins: "President Bush's campaign spent roughly twice as much as it raised last month, using up nearly $50 million as the Republican rolled out his first wave of campaign ads to counter John Kerry's surge as he emerged from the Democratic primaries."

"Court Rejects Dems Appeal"

The Houston Chronicle offers this report. Link via How Appealing at its new address: http://legalaffairs.org/howappealing/.

Another ballot order lawsuit

See this report from the April 16 Boston Globe.

"New Fundraising Rules Bring Lobbyists to the Fore"

The New York Times offers this report.

Washington Post story on Texas redistricting case

It is here.

Department of Corrections

Serves me right to blog before ingesting caffiene. In addition to the problem noted in the last post, here are two more corrections.

1. The Nader article linked to yesterday at this post now works.

2. The Notre Dame conference on my book, The Supreme Court and Election Law, is on Friday, April 23, not April 22 as initially noted in this post.

Bauer on Smith-Noble exchange

I noted here the testy exchange between FEC chair Brad Smith and the Center for Responsive Politic's Larry Noble. Bob Bauer weighs in here on the substance of the exchange between the parties.

Court Won't Hear Texas Redistricting Case; Bad News for Vieth Plaintiffs?

The Supreme Court refused to hear the case involving the re-redistricting in Texas. See this A.P. report. Here is the order list.

This was a summary affirmance, without any opinion or dissents, which is authority that the lower court reached the right result, but not necessarily for the right reasons.

IMPORTANT UPDATE AND CLARIFICATION: Apparently, the Texas redistricting appeal here was only on the question of Section 5 preclearance, and NOT on the partisan gerrymandering claim. If that is indeed correct, my analysis in the next (now bracketed) paragraph is incorrect (except the part that we may see an opinion this week in the Pennsylvania case.) Thanks to two readers for writing quickly to let me correct my error.

[What does this mean for the pending Vieth case (the partisan redistricting case out of Pennsylvania)? I can't see this as good news for plaintiffs. If Vieth was going to breathe new life into partisan gerrymandering claims, as plaintiffs requested, a more likely remedy in the Texas case would have been to send the case back to the lower court for reconsideration in light of the new standard.]

We may see an opinion in Vieth as early as tomorrow. I had been predicting an opinion in March or April. (Of course, I was wrong about when the BCRA opinion would issue, predicting the end of October when it in fact came out in December.)

"Voting for First Time? Bring I.D."

N.J.com offers this report on one of the effects of HAVA.

"Blind Campaign Watchdog"

The Boston Globe offers this editorial, which ends: "But the FEC should move quickly to close the 527 loophole."

"Balancing Money in Politics"

The Los Angeles Times has published my latest oped, which begins:

Two years ago, when the McCain-Feingold campaign finance reform bill was signed into law, it was hailed as a historic victory that would give government back to the people and limit the role of money in politics. "Campaign contributions from a single source that run to the hundreds of thousands or millions of dollars are not healthy for democracy," said Sen. John McCain (R-Ariz.). "Is that not self-evident?"

But today, money seems just as firmly entrenched in politics as ever. Wealthy corporate executives around the country are competing to become "Rangers" for President Bush's reelection committee by raising more than $200,000 in $2,000 chunks from friends and business associates. George Soros recently gave $10 million to liberal groups to fund their anti-Bush ads. Wealthy candidates — the John Corzines and Michael Huffingtons of the world — are still allowed to self-finance their races if they choose to, in some cases buying their way into serious contention in elections in which they would otherwise stand no chance.

"FEC Probing 2000 L.A. Gala for Hillary Clinton"

The Los Angeles Times offers this report.

"Nader Has Qualified Nowhere, Plans to Everywhere"

The Los Angeles Times offers this report. UPDATE: This is a corrected link to the article.

"Bad New Days for Voting Rights"

The New York Times offers this editorial.

"Judge Orders Use of New Arizona Redistricting Maps"

A.P. offers this report.

"The attack dogs of the political process"

That's what Professor Fran Hill calls some of the 527s operating in Florida. See here.

"Election Agency 'Designed for Deadlock'"

The Hartford Courant offers this report.

"Leaders Say Finance Reform is Far From Perfect"

The Topeka Capital-Journal offers this report, which begins: "Rep. Todd Tiahrt, R-Kan., said federal campaign finance reforms that were passed two years ago will force him to finesse the final phase of his re-election campaign."

NRA TV?

FOXNews offers NRA to Launch News Company. Thanks to Nate Persily for the link. See also this NPR audio report.

"Some Candidates Turn to Blogs to Place Ads"

The Washington Post offers this report.

More on Redistricting Investigation in Massachusetts

See this Boston Globe report. Thanks to Brenda Wright for the pointer.

DRE Paper Trail Battle in Florida

See this report, which begins: "House Republicans refused to make the new touch-screen voting machines leave 'paper trails' Thursday, branding the idea an attempt by Democrats to rekindle fear among voters still angry about Florida's 2000 presidential election fiasco."

Profile of Nate Persily in Daily Pennsylvanian

Great profile of Nate here. One obvious misstatement in the article: Referring to his work redistricting Georgia, the article says: "Persily's work in the field of election law began with this most recent project."

"'Soft Money' Ban Unlikely, FEC Head Says

The Seattle Post-Intelligencer offers this report. See this snippet:

Bradley Smith, the FEC chairman, said a majority of the six-member watchdog commission likely would find that any change in spending rules must come from Congress.

"I think we will get four commissioners who will say, 'Sorry, we know some people are really upset about this, but it's not illegal,' " Smith told reporters during a break in the second and final day of testimony on proposed rule changes for political groups.

"Decision on Finance Rules Called Unlikely By May"

The New York Times offers this report.

"Pro-Kerry Groups Argue Vs. New FEC Limits"

A.P. offers this report.

"Federal campaign laws stymie local voter efforts"

See this story out of Pennsylvania.

Smith-Noble Fireworks at Hearing

Okay, so it may not be thrilling to watch the FEC's 527 hearing on C-SPAN. But from this page click on the Day 2 (Morning Hearing) and advance to about 1 hour and 40 minutes into it to watch a very heated exchange between FEC Chair Brad Smith and Center for Responsive Politics' Larry Noble.

Speaking of multimedia, here is the link to Peter Overby's NPR report. (Link via Ed Still.)

"ACT Brings In $6.5 Million During 1st Quarter"

Roll Call offers this breaking news report. Two snippets:

Again, the vast majority of those donations came from a handful of extremely wealthy individuals. Newsweb Corp. President Fred Eychaner contributed $500,000; New York City philanthropists Lewis Cullman ($450,000) and Alida Messinger ($250,000) were also large donors to the group in the period. Neither financier George Soros nor Progressive Corp. Chairman Peter Lewis gave to ACT between Jan. 1 and March 31. The two combined to donate $8 million in 2003.
...
The Democratic groups received another piece of good news Wednesday when the FEC commissioners signaled that they were unlikely to take any action that could potentially curb the 527s’ activities before the November election.

"Secretary of State Gets Voting Plea"

The Los Angeles Times offers this report, with the following subhead: "Orange County, which had glitches with electronic balloting in March, wants to keep the system. Many such counties will soon be told whether they can."

"Gov. Uses Muscle on Ballot Measures"

The Los Angeles Times offers this report.

Satire from The Onion: "New Negative Campaign Ads Blast Voters Directly"

Don't look at this if you are easily offended.

"A Political Machine's Last Hurrah"

The Boston Globe offers this report, with the following subhead: "Mechanical ballots set for one last pull." Thanks to Andrew Pratt for the pointer.

"FEC Unlikely to Act This Year on Tax Exempt Groups"

USA Today offers this report. The report is in line with this post from yesterday.

"GOP: Donors, Including Five in Seattle, Broke the Law"

The Seattle Times offers this report on large contributors to Democratic-leaning 527s.

RNC Chided for Absence at Hearing on 527 Rule'

The Washington Post offers this report.

Texas Congressman Sues over Recount

See this A.P. report.

"Bush-Cheney E-Mails Set Record at Election Commission"

Cox News Service offers this report. Thanks to Craig Holman for the pointer.

"FEC Opens Hearings on Interest Groups"

The Los Angeles Times offers this news update, with the following subhead: "Several commissioners appear willing to postpone action on so-called 527s groups, including MoveOn.org."

Responding to Ortiz (II) on the Constitutionality of Limiting Contributions to 527s

Following up on this post from yesterday on Dan Ortiz's comments submitted to the FEC, Dan replies here (on the election law listserv).

Dan's post is very helpful in clarifying where we agree and disagree. I think Dan has made some good points on the weight of the individual burdens and, if those opposing unlimited contributions to truly independent expenditure committees in fact win in court, I think it will be on this basis. He is right that my concern is with the associational interest, but I agree that language from the Supreme Court's New Deference Quartet (Shrink Missouri, Colorado II, Beaumont, and McConnell) only adds support to his position.

But I think that to the extent that the state needs to come up with a strong state interest to justify such a limit, it cannot do so unless the Supreme Court is willing to rethink its fundamental distinction between contributions and expenditures in Buckley.

Both of Dan's arguments on state interests that could justify limiting contributions to fund independent expenditures could justify limits on independent expenditures themselves. Here is the nub of Dan's two interests:
(1) "corporations, unions, and individuals contributing money to [these committees]...are in some sense circumventing soft money limitations, especially if they hope for and achieve the kind of access and influence the Court through soft money got them."
(2)"To the extent [these committees] because of their size and efficiencies can better monitor, reward, and punish elected officials there is some reason to think that those officials will become beholden to them."
On Dan's first point, I don't think "especially" is correct. If the soft money ban was put in place to prevent parties from selling access, these independent expenditure committees would be "circumventing" the law only if they were trying to achieve access and influence.
How would a group achieve "access and influence" through truly independent expenditures, or, looking at Dan's second point, how could politicians become "beholden" to committees making independent expenditures? The idea must be that independent expenditures can create this relationship. That's not a ridiculous idea at all, but it is an idea that was rejected explicitly in Buckley (footnote omitted):

Second, quite apart from the shortcomings of §608(e)(1) in preventing any abuses generated by large independent expenditures, the independent advocacy restricted by the provision does not presently appear to pose dangers of real or apparent corruption comparable to those identified with large campaign contributions. The parties defending §608(e)(1) contend that it is necessary to prevent would be contributors from avoiding the contribution limitations by the simple expedient of paying directly for media advertisements or for other portions of the candidate's campaign activities. They argue that expenditures controlled by or coordinated with the candidate and his campaign might well have virtually the same value to the candidate as a contribution and would pose similar dangers of abuse. Yet such controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act.
Section 608(b)'s contribution ceilings rather than §608(e)(1)'s independent expenditure limitation prevent attempts to circumvent the Act through prearranged or coordinated expenditures amounting to disguised contributions. By contrast, §608(e)(1) limits expenditures for express advocacy of candidates made totally independently of the candidate and his campaign. Unlike contributions, such independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate. Rather than preventing circumvention of the contribution limitations, §608(e)(1) severely restricts all independent advocacy despite its substantially diminished potential for abuse.

Until the Supreme Court is willing to rethink that line of reasoning, coming up with an adequate state interest to limit contributions for truly independent expenditures will be tough. And how effective would such a law be anyway if Soros can still spend his $10 million? It will harm those with relatively little money (Roy's point), without (assuming arguendo) preventing Soros from using his millions to buy access through his independent ads. How can that serve the "substantial state interest" the court required in Buckley?

Vice-Chair Weintraub's Opening Statement at Today's Rulemaking

You can access the statement here. It is also available on the FEC website, but that is loading very slowly (no doubt, given everyone reading the 200,000 comments there). If I can find links to opening statement of other FEC members, I'll put them here in an update.

Counting Noses on the 527 Issue: The Real Possibility of a 3-3 Tie

As the FEC undertakes its very important rulemaking on 527s, let's not forget the specific issue that is at stake: a proposed draft rule on when 527s (and perhaps other non-profits) are to be treated as "political committees" under the FECA and therefore subject to certain limits (including a $5,000 contribution limit from individuals as I've written about in commentaries you can access here and see here.)

Because these 527s are helping Democrats and hurting President Bush, one might expect a 3-3 split along party lines at the FEC (three commissioners are Democrats and three are Republicans). But it does not appear to be shaping up to be a party-line split. First, FEC Republican Chair Brad Smith seems to be quite wary of regulating 527s as political committees. In this Washington Post report he says "that if the commission adopts the proposed rules, 'it will be the most significant expansion of federal regulations since 1974,' when Congress adopted major post-Watergate campaign reforms. Smith is no fan of regulation.

Second, outgoing Democratic commissioner Scott Thomas sounds from Bob Bauer's early report to be favoring regulation. Much speculation has swirled around how Thomas would vote, especially given how he's been treated by Democrats. (See my earlier post here, linking to this Roll Call article.)

If the four other commissioners vote along party lines, that still leaves a 3-3 split, with the real possibility of no rule emerging. What happens if the FEC fails to craft a rule? I expect that those in the (split) reform community who favor regulation, or the RNC and/or Bush campaign committee, will go to Court challenging the inaction. Of course, if the FEC issues a rule that limits the 527s, I expect a court challenge from those 527s.

It should make for an interesting summer. The FEC's final action is expected in mid-May.

"Election Donation Proposal Gains Critics"

A.P. offers this report.

"Panel Deluged on Advocacy Group' Election Ads"

The Los Angeles Times offers this report.

"The 527 Committees Considered as Policy, Not Law"

See this post by the Decembrist.

Bauer Blogging from FEC Hearing

His first entry is here.

"Proposed Rules for '527' Groups Lead to Some Unusual Alliances"

The Washington Post offers this report.

"House Approves 'Veteran" Tag for Brockton Candidates"

The Enterprise (Brockton, MA) offers this report. Thanks to Mark Kemper for the pointer. Mark asks: "Is this legal?" A very interesting question. Perhaps Beth Garrett or other readers who know a lot a bout the ballot label litigation can answer that question. I assume that this label will benefit some candidates and harm others, much like giving incumbents the chance to write "incumbent" or "mayor," etc. UPDATE: Beth Garrett indeed responds here.

Yet Another Review of the Chief Justice's Book Finding a Connection with....You Know

See Benjamin Wittes's Washington Post review.

NY Times Story on FEC 527 Hearing

It is here.

Defending the Constitutionality of Limiting Contributions to Independent Expenditure Political Committees: Some Thoughts on the Ortiz Memo and the Constitutional Question Lurking in the Background of Tomorrow's Federal Election Commission 527 Rulemaking

Yesterday in this post I linked to Dan Ortiz's comments that have been submitted by Democracy 21, the Campaign Legal Center, and the Center for Responsive Politics in support of regulating 527s as political committees in the upcoming FEC rulemaking. (These three groups, by the way, don't think the FEC should be reaching the constitutional questions that Dan's memo addresses; see here. I think that this memo is their backup in case the FEC reaches the issue, or their opening salvo if and when this question gets to court.)

Dan's memo is the most thoughtful defense of regulating the constitutionality of independent expenditure committees that I have seen; but I remain unconvinced. In fact, for reasons I set forth below, I take exactly the position of the Brennan Center on this point (see their comments here), comments I first read yesterday on the CLC website.

Just to reorient those to the issue, here is the question: under Buckley v. Valeo, it is constitutional to limit contributions by individuals to candidates, but it is unconstitutional to limit independent expenditures by individuals. (Austin v. Michigan Chamber of Commerce and now McConnell v. Federal Election Commission allow limits on independent expenditures and certain other "electioneering communications" by corporations and unions). Thus, George Soros can go out tomorrow and spend $10 million on advertisements bashing George Bush, so long as he does so independently (i.e., without any coordination with any other candidate, party, or political committee). But Soros doesn't want to spend his money independently to bash Bush; he wants to give it to a few organizations (such as Moveon.org's 527 organization, and Americans Coming Together) that are pretty saavy about their media spending bashing Bush. These groups are organized under section 527 of the tax code, which means they must have as a purpose the influencing of local, state or federal elections.

Part of what is at stake in tomorrow's FEC hearing is whether these 527s should be regulated as "political committees." This is a thorny statutory question, turning in part on how to tell whether these groups have a "major purpose" of influencing federal elections. I'm willing to concede that under a well-drawn test, these groups should be considered political committees---but the issue is far from clear.

Federal law provides that political committees may not accept contributions from individuals in excess of $5,000. Soros has given these 527s considerably more than $5,000. Are these groups, assuming they are political committees, exceeding this limitation? Yes, but the limitation might be unconstitutional. These groups are making only independent expenditures, not coordinating with any candidates or party. If it is unconstitutional to limit independent spending by Soros directly, why would it be constitutional to limit contributions to a group that makes only independent expenditures? The Supreme Court has not directly addressed the issue, but in California Medical Association v. FEC, 453 U.S. 182 (1981), the Court upheld a limit a limit on contributions to political committees that make contributions to candidates. There was no majority opinion. In dictum in a concurring opinion, Justice Blackmun noted that a different result would follow if the groups made only independent expenditures because they post no threat of corrupting candidates.

As I read it, Dan Ortiz's comments make a three-pronged attack on the constitutional question:

1. Blackmun's statement in CMA was only dicta, and in any case if you look at what the Court did, rather than what Justice Blackmun said, it in fact upheld contribution limits applied to expenditures made by CMA that were not contributions to candidates.

2. The Court in McConnell in footnote 48 recognized that the First Amendment allows regulating contributions to fund "express advocacy and numerous other noncoordinated expenditures," citing CMA and that portion of Buckley upholding an aggregate contribution limit. Independent expenditure political committees, like parties, may be regulated because they will likely be used to benefit candidates directly. So these committees are unlike the "political talk show hosts" and "newspaper editors" that the McConnell Court in footnote 51 said could not be regulated "solely" for the benefit they supply to federal candidates.

3. Campaign contributions impose only a marginal restriction on free speech, because Soros still gets the symbolic act of contributing $5,000 to Move.on's 527.

Points 1 and 3 seem somewhat tangential to the argument. At most under Dan's reading of CMA, we can ignore it. Certainly the case cannot be cited as authority on an issue it did not purport to decide. Point 3 I think misses the associational issue that comes up not for Soros, but for those who have more than $5,000 to give, but not enough as Soros to be able to engage in effective advocacy. (Thanks to Roy Schotland for this point in a personal communication.)

So the issue, as I've always thought, comes down to what the Court did in McConnell's footnotes 48 and 51. It seems there are two ways to read the footnotes consistent with a constitutional argument in favor of regulating independent expenditure political committees. First, one can argue that the footnotes constitute a sub silentio overruling of Buckley's holding that independent expenditures may not be limited because there is not enough evidence of a link between independent expenditures and a risk of corrupting candidates. It is hard for me to believe that the Court worked such a major change in the law in such an obscure way. Would Justice O'Connor really have signed onto (or written?) that? Second, one can argue that the footnotes recognize that only certain independent expenditures (and the contributions that fund them) may be limited: those where there is not only a great potential benefit to candidates but also a special danger of corruption. This special danger of corruption arises in the party context because, as the Court noted in McConnell, parties are uniquely situated to serve as conduits for corruption.

Dan seems to rely upon this second reading, suggesting that these independent 527s are more like political parties than like the "newspaper editors" and "talk show hosts" that cannot be limited in contributions to them (not that they take contributions, but that's what the Supreme Court said).

Here is where Dan's argument is at its weakest. He writes:

Independent expenditure committees pose two special dangers long recognized by the Court htat make them more like parties than like "political talk show hosts or newspaper editors." First, ....[i]f independent expenditure committees are exempted from coverage as political committees, they will become the primary means for donors to circumvent FECA's new soft money provisions. Donors seeking to influence federal officeholders...will contribute instead to independent expenditure commitees for exactly the same uses.... Second, independent expendidure commitees share with parties--and not with talk show hosts and editors---a central characteristic that increases the corruptive potential of contributions made to them. As the Supreme Court has explained, political "parties' capacity to concentrate power to elect is the very capacity that apparently opens them to explotiation as channels for circumventing spending limits binding on other political players [..." Quoting Colorado II.] Independent expendiditure committees, like parties and unlike talk show hosts hand wealthy individuals, have this same capacity to corrupt."

On the first point, Dan simply ignores the fact that these groups must be truly independent of the parties and the candidates in a way that the parties never can be. If Dan thinks that independence is in fact impossible, then, again, the entire Buckley edifice is falling. The question is not, as Dan puts it, whether donors will put money to "exactly the same uses," but whether the same sale of access to elected officials is possible. I don't see how it is, unless we are willing to find that access with all independent expenditures.

On Dan's second point, there are two problems. First, this is just a recapitulation of the first argument: because these groups have the power to elect, they can provide an avenue for the sale of access. But again that's not possible. Second, to the extent Dan is arguing that the "power to elect" allows for regulation, then of course we could regulate newspaper editors and political talk show hosts as well.

In short, unless we are willing to abandon Buckley's stand on the capacity of independent expenditures to corrupt candidates, I don't see the constiutitonal argument succeeding. Thus, the task for the lower courts will be to read McConnell's footnotes 48 and 51 and make a prediction if that is what the Court is next going to do. This latter point reminds me of the Ninth Circuit's opinion in Montana Chamber of Commerce v. Argenbright, 226 F.3d 1049 (9th Cir. 2000), cert. denied 534 U.S. 817 (2001). The case involved a Montana initiative preventing corporations from making contributions or expenditures in connection with ballot campaigns. Even though the law seemed to run afoul of Bellotti, the state argued that Austin's new "corruption" rationale in effect overruled Bellotti. The Ninth Circuit wrote: "Even if Austin plausibly may be read as undermining Bellotti, this is for the Supreme Court, not us to say.” 226 F.3d at 1957.

Symposium on "The Supreme Court and Election Law"

Notre Dame Law School and the Journal of Legislation are sponsoring a mini-symposium on my book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore. The symposium will be on April 23 [UPDATE: Note corrected date] at the Notre Dame Law School courtroom beginning at 9 am.

Participants include John Nagle of Notre Dame, Guy Charles of the University of Minnesota, Luis Fuente-Rohwer of Indiana, and me. The Journal of Legislation will publish papers from the mini-symposium.

By the way, Dan Farber's review of my book in the current issue of the Election Law Journal, "Implementing Equality," has an interesting discussion the debate between my rights approach and the structuralist approach of Rick Pildes and Sam Issacharoff. (By the way, even though I co-edit Election Law Journal, I was recused from deciding if my book should be reviewed and, if so, who the reviewer should be.)

C-SPAN Slated to Broadcast 527 Hearings

A reliable source tells me that C-SPAN is planning to broadcast the two days of hearings at the FEC on the 527 rulemaking. The source cautions: "As you know, CSPAN broadcast decisions can change from hour to hour, so this may change."

By the way, this is the 1,001 blog post on this new blog site (not counting the posts on the old blogspot site), a milestone of sorts.

"Richardson, Hispanic Members Lead Effort to Influence 527 Rulemaking"

Roll Call offers this breaking news report (paid registration required).

Apparently they Haven't Read Buckley v. Valeo at the University of Montana

From this article on a student's plan to exceed spending limits imposed in running for student Senate at the University of Montana: "UM Legal Counsel David Aronofsky said that a recent U.S. Supreme Court decision upholds the legality of spending limits as long as they are within reason." Of course, McConnell v. Federal Election Commission upheld contribution limits, not spending limits (though some see the seeds planted for the Court eventually upholding spending limits in McConnell's footnote 48).

I wonder if spending limits could be defended in school elections on grounds that school elections are somehow different, e.g., they serve mainly a pedagogical purpose. I would be interested in hearing from readers if there have been cases so suggesting (or suggesting other rationales for spending limits in student campaigns).
UPDATE: A number of people have written to say that spending limits in college elections are common. One reader suggested that there may have been litigation on this point involving U.C. Irvine. See also this post on experience at another U.C. school.

"527 Is Magic Number For Cash-Strapped John Kerry Campaign"

MTV (!) offers this report.

"Voters Choosing None of the Above, and Parties Scramble"

The New York Times offers this report on the increasing number of New York voters who fail to register as Democrats or Republicans.

"Political Parties Revamp Websites"

A.P. offers this report.

"Let Immigrants Vote?"

The New York Times offers this letter to the editor.

"Supreme Court to hear [East Chicago] vote fraud case today"

See this NWI Times (Indiana) report. Thanks to Ed Feigenbaum for the pointer.

"Independent Groups Help Kerry Keep Pace With Bush Spending"

The San Diego Union-Tribune offers this report.

Interesting Comments in 527 Rulemaking

The Campaign Legal Center has posted a number of comments submitted to the FEC at this link. Among the most interesting is Professor Dan Ortiz's constitutional analysis. I hope to post some responses to this thoughtful analysis later this week. UPDATE: The FEC has now posted its agenda. By clicking on the names of the presenters to the FEC, you may access each presenter's written comments.

Another Review of Chief Justice Rehnquist's book finds it is Really About Bush v. Gore

See this New York Times Book Review article. A snippet: "But reading between the lines makes clear that he regards the 2000 election as comparable to those previous national crises and believes that the court, far from rushing in to short-circuit the political and constitutional process, acted reluctantly. He seems as certain as his predecessors were in 1876 that the justices' participation saved the nation from ''a situation fraught with combustible uncertainty.''

"Political Donations to Lawmakers Swirl into Dark Hole"

The St. Petersburg (Fla) Times offers this report. Update: See this oped by Dan Smith and Nicole James. And see this related website.

"Experts Sought in Vote Dispute"

The Los Angeles Times offers this report, with the following subhead: "Riverside County counsel advises the supervisors to hire outside legal help to fight a challenge to electronic voting system."

"Democrats Exploit Loophole to Subvert Campaign Finance Law"

Mike McKay offers this Seattle Times commentary.

"Following the Money Made Easier"

Wired News offers this report.

Albany Times-Union on Nonprofits and the FEC's 527 Rulemaking

See here.

"Coors to Yank TV Ads Featuring Chairman"

See this report by the Denver Channel, which begins, "Coors Brewing Co. is yanking three televisions ads from the Colorado market that feature company chairman Peter Coors because he plans to run for the U.S. Senate. The Golden-based company doesn't want to run afoul of federal communications law, which requires broadcasters to give equal time to opponents when a political candidate appears in a broadcast."

"Lobbyists Try to Parlay a Presidential Campaign"

The Washington Post offers this report.

Bauer on Corn on 527s

Responding to this article by David Corn that I linked to last week, Bob Bauer offers these thoughts over on his website.

"Results in on Voting Machines"

The Los Angeles Times offers this report, with the following subhead: "Electronic systems offer some major advantages to the disabled and sight-impaired, experts say, but several warn of potential glitches."

Dean on a Nader Candidacy

Howard Dean offers this New York Times oped.

"Florida Seniors Look for Voting Absolution"

The Los Angeles Times offers this report, with the following subhead: "They want to make up for errors that may have elected President Bush. But concern has risen about reliability of new touch screen machines."

"Ballot Plan Would Bypass Parties"

The Los Angeles Times offers this report, which begins: "Four years after the Supreme Court struck down California's open primary, voters could soon get another chance to overhaul state elections with a new free-for-all ballot. The proposal, nearing qualification for a November vote, has vexed top Democrats and Republicans alike. Voters, regardless of party registration, would be able to pick any candidate in a primary. The candidates who finished first and second would then compete in a general-election runoff — even if both belonged to the same party." (Disclosure: I am a consultant for the proponents of this initiative.)

"Open Season: Ruling Enables Hunt for Votes"

The Daily Oklahoman offers this editorial (free registration required), which begins: "Libertarians are eternal optimists. They offer good ideas and put candidates on the ballot, but they have little prospect of winning an election in Oklahoma. Thanks to an appellate court ruling this week, however, Libertarians may soon harvest more voters from the ranks of Democrats, Republicans and independents. " Thanks to Richard Winger for the pointer.

"Locke's Veto Betrays States Voters"

The Olympian offers this editorial on the Washington governor's decision to veto the "Top Two" primary bill.

"Campaign Reform as Gag Rule"

Robyn Blumner offers this commentary in the St. Petersburg (Fla) Times.

NYC Mayor Speaks Out on Immigrant Voting

Following up on this story, the New York Times offers Bloomberg Voices His Opposition to Voting by Noncitizens.

NYT Article on Conservative-Leaning 527, Club for Growth

See here.

"As Bush Ends Money Drive, Kerry Goes On"

The New York Times will feature this front page report Saturday.

"House GOP Committee Pays Fine in 'Soft Money' Case"

A.P. offers this report.

"House Committee Considering Whether Conyers Broke Election Laws"

A.P. offers this report.

"The Trouble with 527s"

David Corn offers this commentary.

"Evading Reform: '527' Committees Take the Field"

The Sacramento Bee offers this editorial.

California's Fair Political Practices Commission Considers Limits on Fundraising by Elected Officials for Ballot Measure Committees

See this Sacramento Bee report. Thanks to Aaron Lopez for the pointer.

"Not Ready for Prime Time? Why Voting Problems and Legal Challenges Could Mar the 2004 Presidential Vote"

I have just posted this commentary on Loyola Marymount University's The Presidency 2004 website.

FEC Commissioner Mason's Home Destroyed in Fire

Thankfully no one was injured. A short news item is here, but does not mention the identity of those in the home. Our best wishes to the Mason family. Thanks to a reader for passing this on. UPDATE: By clicking on the "Feedroom" link, and then choosing "house fire," one can at least hear (I can't see) the interview with Mason on the local TV station.

"Election Laws Pass Federal Muster"

See this A.P. report on Voting Rights Act preclearance in South Dakota.

120 House Democrats Send Letter to FEC on 527 Rulemaking

The letter is here. A snippet:

We support BCRA because we believe that the link between unregulated contributions and federal officeholders, candidates and their parties should be broken. We believe that the statute achieved this goal, striking a careful balance between needed additional regulation of campaign finance, on the one hand, and the protection of speech and associational rights, on the other. And we believe that the proposed rules severely undermine that balance, with potentially severe consequences for vital speech on the central issues of the day.

Specifically, the proposed rules before the Commission would expand the reach of BCRA’s limitations to independent organizations in a manner wholly unsupported by BCRA or the record of our deliberations on the new law. For example, Congress crafted a new term for certain election-influencing activities by political parties – so-called "Federal election activities" – as part of the BCRA approach to limiting party soft money. The proposed rules would appropriate this concept of "Federal election activities" for the very different purpose of regulating "issues" speech and other political activity of 501(c) and other organizations. Congress did not choose to vastly extend in this way the concept of "Federal election activities."

More generally, the rulemaking is concerned with new restrictions on "527" organizations, primarily through the adoption of new definitions of an "expenditure." Congress, of course, did not amend in BCRA the definition of "expenditure" or, for that matter, the definition of "political committee." Moreover, while BCRA reflects Congress’ full awareness of the nature and activities of "527s, it did not consider comprehensive restrictions on these organizations like those in the proposed rules.

"Norton Seeking Hearing on Voting Rights"

Roll Call offers this report (paid registration required), which begins: "Looking to build on a recent decision that found the United States in violation of international human rights laws, District of Columbia voting rights advocates are now pushing for a hearing before the Helsinki Commission in their campaign for Congressional representation."

"Push is On to Give Legal Immigrants Vote in New York"

The New York Times offers this report.

Two New Interesting Election Law Cases

Back on March 16, the Maryland Court of Appeals struck down a Maryland statute preventing candidates and political parties from paying "walking around money' to workers on election day. The court applied strict scrutiny, and held that the ban was not justified by a compelling interest in preventing corruption, in light of the lack of evidence that the money indeed facilitated vote buying. The case is State v. Brookins.

Today, the Ninth Circuit decided a case under Section 2 of the Voting Rights Act. Unsurprisingly, the court held that section 2 does not exceed congressional power under the Fourteenth or Fifteenth Amendments. (I discuss this issue on pages 120-33 of my new book.) It also held that Blaine County, Montana's use of at large voting violated section 2 of the Act. United States v. Blaine County. (Thanks to David Ettinger for the pointer to the second case.)

527s in Iowa

See this commentary in the Des Moines Register. Thanks to Charlie Smithson for the pointer.

"MoveOn Staffer Moves on to Kerry Campaign"

A.P. offers this report. No doubt, the RNC and Bush campaign will bring this fact to the attention to the FEC to bolster the claim in their complaint of illegal coordination between the Kerry campaign and outside groups.

10th Circuit Decides Primary case

The Tenth Circuit has decided Beaver v. Clingman. The case involved the constitutionality of Oklahoma's semi-closed primary objected to by one Oklahoma's political parties. The case presented a pretty clear-cut application of two earlier Supreme Court cases holding that states may not impose a particular form of a party primary against a party's consent.
As the court explained:

This case falls between Tashjian and [California Democratic Party v.] Jones. Whereas Tashjian concluded that states could not restrict parties from allowing independent voters to vote in their primaries, and Jones held that states could not compel parties to allow voters from other parties to vote in their primaries, the instant case asks whether it is permissible for states to forbid parties from allowing registered voters from other parties to participate in their primaries....
When read together, the clear and unavoidable implication of Tashjian and Jones is that a state generally may not restrict the ability of a political party to define the group of citizens that will choose its standard-bearer. That conclusion dictates the terms of our present analysis, for among Tashjian, Jones, and the instant case runs a connecting thread. In each of the three cases, the regulation at issue restricted the options of parties seeking to define the scope of their associational rights. Faced with the prospect of such burdens in Tashjian and Jones, the Supreme Court employed strict scrutiny. Given the similarities among the cases, we are compelled to exercise similar vigilance here. Because we conclude that the burden in the instant case is a severe one, we proceed to analyze whether the regulations are narrowly tailored to serve a compelling state interest.

The court then rejected the interests put forward by Oklahoma to justify its law. Of course, this ruling only applies to party primaries. To the extent a state does not hold a party primary to choose the parties' standard-bearers (as in Louisiana), Jones makes clear that the parties cannot object to the form of the primary. (Disclosure: I am a consultant for the proponents of such a primary in California.)

Roll Call Recap of Comments Submitted to FEC on the 527 Issue

Be sure not to miss this article, if you have paid access.
This article in The Hill may be accessed without charge.

Campaign Reform Groups' Comments on 527s now available; Can the Groups (and FEC) Successfully Sidestep Key Political and Constitutional Questions?

Following up on this post, here are the comments of Democracy 21, the Campaign Legal Center, and the Center for Repsonsive Politics on the FEC's upcoming proposed rulemaking on 527s organizations.
The groups advocate a major purpose test (similar to Alternative 2-A, for those who have followed the NPRM) that would apply to 527s. But, in a move intended to sidestep a potential political firestorm, the groups would not apply the major purpose test to 501(c) organizations. (This, unsurprisingly, echoes Sen. McCain's comments posted here.)

The comments also seek to sidestep the key constitutional question involved in regulating 527s that make only independent expenditures. Their entire discussion is in footnote 10:

10 Questions have been raised about the constitutionality of this contribution limit insofar as it applies to non-connected committees that make only independent expenditures. We believe this limit is constitutional. E.g., McConnell, 157 L.Ed.2d at 554 n. 48. Furthermore, nothing in FECA or BCRA exempts such committees from the contribution limit, and a longstanding regulation of the Commission specifically applies the contribution limit in this context. 11 C.F.R. § 110.2(k). This regulation has not been noticed in this rulemaking and the regulation, and issues relating to it, therefore, are not before the Commission in this proceeding.

As expected, the reformers are relying on a cryptic footnote in McConnell, which suggests that even limits on independent expenditures might be constitutional. Did the Court really mean to call Buckley v. Valeo's core distinction between contributions and expenditures into question in footnote 48? This is a much more difficult question than the reformers' footnote 10 reveals, and likely would be the focus of litigation should the FEC adopt rules that would regulate 527s that make only independent expenditures. (I have said more on this question here and here.)
So how should an FEC commissioner vote on the NPRM if he or she believes that some 527s qualify as political committees under a reasonable "major purpose" test, but that it is unconstitutional to regulate such political committees that make only independent expenditures? [UPDATE: "[U]nconstitutional to regulate" was a bit too loose. Of course, disclosure of contributions to and spending by such organizations could be required, and other regulations could apply. What I should have written is "unconstitutional to limit individual contributions to".] Is it enough that the constitutional issue "has not been noticed in this rulemaking" and pass the buck to the courts? And all of this in the context of an ongoing (and very hot) presidential election season?

RNC Begins E-Mail Campaign Lobbying FEC on 527s

A.P. offers this article with a poor headline.

"Nader Fails to Make Oregon Ballot"

A.P. offers this report.

"Federal Court Takes Up East Chicago Election Dispute"

The latest election law news from Indiana is here.

McCain on McCain-Feingold and on the "Disgraceful" Act of 527s

In this wide-ranging interview with Senator John McCain, the following Q&A appears:

Q: You mentioned concern about the tone of the campaign perhaps turning off that middle electorate in what is clearly a critically important election year. Does that mean that you're not seeing from McCain-Feingold what you had hoped to see?

A: I think we've accomplished a huge amount. And here's why: No longer can a corporate executive or a union leader, a trial lawyer, be called on the phone by me or any other federal elected official and say, "I need a million dollars for the fund-raiser tomorrow night, and by the way, your bill is before my committee next week." That was what was happening.

The other interesting aspect is I'm responsible for this ad, "I approve this ad." It's cut way down on these negative ads.

And we've seen this dramatic expansion of individual donors. That's what we wanted. We wanted more donors.

Howard Dean has got the Internet cranked. I just saw in the paper this morning that Kerry has gotten a huge amount off the Internet. That's wonderful. That's a commitment to a campaign.

Now we get to the 527s (political action groups). The 527s are illegal. And the U.S. Supreme Court decision pointed out very accurately that any partisan political activity will be subject to campaign finance laws. They are not in violation of McCain-Feingold, they are in violation of the law that was passed in 1974, partisan political activities. We will win in court.

Our problem is we have a Federal Election Commission which is so politicized and so partisan that they are a disgrace.

The Supreme Court, four times in their decision, said that there was no law change, there was no court decision that opened the spigot of soft money. It was the Federal Election Commission which made decisions which allowed this huge spigot to be turned on. Actually it was the Dukakis campaign that made it, and the Republicans jumped on it.

Which reminds me, the Democrats are incredibly stupid to be pushing for these 527s because for every billionaire George Soros, there's 20 billionaire conservative Republicans that if this thing ever got really cranked up they would beat the daylights out of Democrats. They can raise more money than Democrats when you have a soft money situation. So they are stupid by pursuing this because at the end of the day, if they did prevail they would lose.

But the other point is, we are going to have to try to get a ruling from them, it may be a 3-3 tie which means they do nothing. We will have to go to court. I am confident we will win in court.

The federal campaign election laws say any entity that engages in partisan political activity shall be subject to campaign finance restrictions. That is clear that these outfits are engaged in partisan political activity.

But the Supreme Court also said that money is like water in politics and will always try to find a way.

When I first ran for Congress in 1982 there was no such thing as soft money. It just wasn't there. We used to have to go to barbecues. We had to knock on doors. We had to do things that most Americans think politicians have to do. Then in 1988 the spigot was turned on.

By the way, in Arizona we have a clean elections law where when you get enough signatures and you can be eligible for funding and it has been a success.

Q: So if I want to set up a Citizens for a Fair Systems committee and I want to buy a lot of air time to criticize Sen. John McCain, to you that is just thinly disguised partisan activity and ought to be stopped?

A: No. It shouldn't be stopped. You should have to raise your money the same way the candidates do. A lot of people believe we want it stopped. We don't want it stopped. If you want to set up an organization, just raise your money the same way that the candidates do.

Q: So what you need to FEC to do is establish this?

A: Just say, look you have to raise your money according to the existing campaign finance laws.

Q: Couldn't any of these organizations at least make the case, look we're not partisan, we're just a free speech group?

A: Then can make that case. If they are, there are many organizations, Common Cause, hundreds of others that really are non-partisan. They are the 501(c)3 (non-profits). Fine. The name of a 527 is engaging in partisan political activity. That identifies what they are.

Q: Can you get this in time to affect this current election?

A: Yes. There is a ruling due in May.

Let me tell you what these 527s have done too, which is so disgraceful. They have now got the 501(c)3s all cranked up, like we are going to go after them. We're not. We are not. We have no problem with them.

"Radio Stations Seek Relief on Ad Disclaimers"

Roll Call offers this report (paid subscription required), which begins: "For months media consultants have been grousing about the new “Stand By Your Ad” requirement for televised campaign commercials, arguing that it eats up precious moments in the already tight 30-second ad.

Now some radio networks are chiming in with criticism of the new political advertising requirement.

Metro Networks Communications Inc. — a national company that provides more than 2,000 radio stations across the country with live traffic, news, sports and weather reports — has asked the Federal Election Commission for an exemption from the requirement, arguing that it would be “physically impossible” for the company to comply with the provision.

Tom Fanning, national director of marketing for Metro Networks, explained in a letter to the FEC that his company’s reporters give live reports in real time on any variety of topics, and read a 10-second sponsorship message at the end of their report."

"An Easy Way to Get More Political Bang for 3 Bucks"

J. Kenneth Blackwell and Vic Fazio offer this Los Angeles Times oped on public financing.

Potential Gap in Illinois Election Law if Senate Candidate Jack Ryan Drops Out

The Daily Herald offers this report (link via Politicalwire.com), which begins:

State law doesn't cover how to replace Senate candidate dropouts

The buzz among Republican insiders is several party leaders have spoken to U.S. Senate nominee Jack Ryan and asked him to get his divorce file situation straightened out sooner rather than later.

Two Chicago media outlets are asking a California judge to release sealed documents Ryan's ex-wife's attorney has alleged contain information embarrassing to Ryan's political career. Ryan is fighting the documents' release, saying he wants to protect his son.

Here's a new wrinkle: If the documents are released and the information proves fatal to Ryan's campaign, election law makes no specific provision for who appoints a new Republican U.S. Senate candidate.

The article does not mention one of the trickiest issues related to this question. Because this is a race for a federal office, the United States Constitution may limit how a replacement may be named. Article I, Section 4 of the Constitution provides that the state legislature may prescribe the rules for picking Senators. If the legislative scheme has a gap, can courts (as opposed to the Illinois legislature) fill it in without violating Article I, Section 4?
The concurring opinion of Justice Rehnquist in Bush v. Gore (joined by Justices Scalia and Thomas) raised a parallel question under Article II (pertaining to state legislatures providing the rules for choosing presidential electors). But an attack on the New Jersey Supreme Court's decision to allow late replacement of dropout Robert Torricelli in the New Jersey Senate race a few years ago on these grounds failed, and the United States Supreme Court declined to intervene. The issue is far from settled.

"Political Money Flows Faster in '04"

The Wall Street Journal offers this report. Thanks to Steven Sholk for the link.

Democracy 21, Campaign Legal Center, and Center for Responsive Politics Comments on 527 Rulemaking, and Bauer response

The comments are here. Bob Bauer's reply is here. UPDATE: Trevor Potter of the Campaign Legal Center writes:

Actually, what Bob Bauer has up is Friday's DRAFT of potential Comments From the Legal Center, Democracy 21, and the Center for Responsive Politics. It was provided to an outside organization at their request Friday, and has, rather strangely, turned up on the web. When the actual comments are finished and filed today, we will post.

I'll link here to the final comments when the CLC posts them.

LaRaja on BCRA

Ray LaRaja's fine commentary in the Election Law Journal's symposium on McConnell v. FEC was inadvertently excluded from the electronic version of the symposium. You can now find it at this link (fee required). Of course, Ray's article also appears in the hard copy of the journal, which subscribers to the Journal should have already received in the mail.

"Nader’s Nadir: Despite Early Polls, It’s Over for Ralph"

Stuart Rothenberg offers this Roll Call column (paid subscription required), which begins: "If you believe the early polls, Ralph Nader could again be a factor in deciding the winner of the 2004 presidential contest. Count me as a skeptic."

Letter on McIntyre

The Miami Herald ran this letter to the editor discussing an important campaign finance disclosure case of the Supreme Court.

"A Little Too Much Initiative"

The Los Angeles Times offers this editorial, which begins: "Direct democracy is running amok in California."

"The Confusion over Voter I.D."

The New York Times offers this editorial.

"Liberals in Organizing Fury to Prove Left is Right"

The San Francisco Chronicle offers this report.

Washington Post Editorial on the Latest RNC Complaint Against the 527s

See here.

What happens when Moveon.org and other organizations opposing the 527 rulemaking get 30,000 people to e-mail comments to the FEC's mailbox and the Campaign Legal Center tries to mount a countercampaign?

See here, where the FEC asks for comments by those who actually intend to testify to send them to a different e-mail address. (Pointer from Don Tobin.) I would bet that the FEC has received more e-mail from the public this week than it has cumulatively received since it began accepting e-mail.

More Uncertainty over Washington State Primary after Locke partial veto

See this Seattle Times story, which notes both legal challenges to the partial veto as well as an attempt to subject the new law to a referendum, which would in effect suspend it until a vote in November. A big mess.

"Analysis: Money, Politics and the FEC"

Peter Roff of UPI offers this commentary. Thanks to Colin Hanna for the pointer.

"Fundraisers are collecting by the bundle for Bush camp"

The Los Angeles Times offers this report.

Prisoner voting rights in UK

See this report in The Independent. Thanks to Jim Gardner for the pointer.

Maryland Supreme Court hears Judicial Elections case

See this Baltimore Sun report, which begins: "Maryland's highest court will hear a challenge today to a section of the state election law that allows only registered Democrats and Republicans to vote in the primary for circuit judge, an office considered nonpartisan."

Will BCRA's Millionaire's Provision Be Triggered in Florida?

See this Miami Herald report.

"When the Mud Flies This Time, Bush Can't Duck"

Garry South offers this Los Angeles Times oped on BCRA's "Stand by your ad" provision.

"GOP Convention Funds Falling Short"

Newsday offers this report.

"The New Fat Cats; Meet the fund-raisers who are finessing the campaign-finance law --and raising more dough than ever"

Businessweek offers this report.

Two Election Law Articles in APSR

Dennis Thompson has published Election Time: Normative Implications of Temporal Properties of the Electoral Process in the United States. Matt Barreto, Gary Segura, and Nathan Woods have published The Mobilizing Effect of Majority–Minority Districts on Latino Turnout. Both articles appear in Volume 98, No. 1 (Feb. 2004) of the American Political Science Review. Note: These links will work only if one is logged in as an APSA member. Thanks to Alec Ewald for the pointers.

"Paper Backups Sought for Voting Machines"

A.P. offers this report.

No "Top Two" Blanket Primary for Washington State

See this Seattle Post-Intelligencer update, which begins:

Gov. Gary Locke on Thursday used his veto power to create separate party primary elections in the state for the first time in nearly 70 years.

Locke rejected a "Top 2" primary system similar to Louisiana's primary, in which all candidates appear on the ballot and the top two finishers, regardless of party, advance to the general election.

Instead, he replaced Washington's popular wide-open blanket primary with a system like that used in Montana, where candidates appear on separate primary ballots, but voters choose which ballot to cast.

"Voting Rights Act Still Serves Purpose"

O. Ricardo Pimentel offers this commentary in the Arizona Republic.