The Texas Re-Redistricting Case

As the Supreme Court's docket entry shows, this case was set for discussion at the Justices' conference on Monday. When orders were released on Tuesday, nothing about the Texas case. Does that mean that the Justices will summarily affirm the result?

Although I have indicated here that I think a summary affirmance is the most likely result in this case, silence this past Tuesday does not mean much. There will be more orders early next week. My guess is that even if a majority of Justices vote for a summary affirmance, there will be a dissent in the Texas case by at least some of the Vieth dissenters. It will take time for such a dissent to be written. On the other hand, if the case is to be set for oral argument, I would expect that to happen pretty soon.

"Fahrenheit 9/11" Without President Bush?

With the October 5 release of Michael Moore's film on DVD (see here for other election-related films and books being released), I happened to see a commerical touting the DVD. It showed Michael Moore and images from the film. What was missing? Any reference or picture of President Bush, something that would seem odd to an outsider given that he's the subject of the film.

The reason is BCRA. Moore's film is being advertised by its distributor, which is a corporation, and corporations cannot pay for an "electioneering communication" without getting an exemption from the FEC. An electioneering communication features a candidate for federal office, is broadcast on T.V., radio, cable or satellite, and is targeted at the relevant electorate.

Fortunately for Moore, most people already know the subject of his film.

"New Runoff System in San Francisco Has the Rival Candidates Cooperating"

The New York Times offers this report.

More Coverage of Ohio Provisional Ballot Controversy

See this report in the Athens News. Chris Geidner weighs in here.

OSCE Report on American Election

You can find it here. Thanks to Karl Manheim for the pointer.

David Broder on Debates and Campaign Finance

See here. See also Bob Bauer's posting.

"Alaska Judge Orders Ballots Reprinted"

A.P. offers this report.

"Democracy in Decline: Can Internet Voting Save the Electoral Process?"

Bryan Mercurio (UNSW) has posted this article on SSRN. Here is the abstract:

Abstract:
This article evaluates the ability of Internet voting to improve the electoral process by comparing it against traditional methods of voting currently used. In order to clearly understand electoral issues, the article briefly describes the criteria needed in order to conduct a successful election. It then introduces and defines the different forms of Internet voting used in the context of this article before introducing and analyzing some major faults with the election system, including its discriminatory effect on minority and disabled voters.

The article then evaluates the promise of Internet voting as a solution to these faults while also reviewing and substantially discrediting the perceived problems with implementing Internet voting. The article concludes by putting forward several proposals leading to the gradual introduction of Internet voting into the electoral landscape.

"Blackwell Ends Paper Chase"

See this Columbus Dispatch report, which begins: "Under fire from voting-rights advocates, Ohio Secretary of State J. Kenneth Blackwell retreated yesterday from a directive that critics said would slow voter-registration efforts and even block some people from casting a ballot Nov. 2."

"Barriers to Student Voting"

The New York Times offered this editorial yesterday.

"F.E.C. to Fight Judge's Ruling on Spending"

The New York Times offers this report. See also this A.P. report.

"Hurdles Remain for American Voters Who Live Overseas"

The New York Times offers this report.

Nader Supreme Court Petition Rejected

SCOTUSblog reports here that Justice Breyer would have granted the stay. UPDATE: A.P. offers this report.

Ohio Election Law Woes

There are a number of election stories now coming out of Ohio. A key battleground state, Ohio is---in my view--the most likely candidate for election day problems and therefore post-election challenges should the election be very close again.

Among the most important issues are (1) a dispute over whether Ohio will accept voter registration cards not printed on card stock [The A.P. story is here; Brian Leiter comments here] and (2) Democrats' challenging the Secretary of State's directive providing that provisional ballots cast in the "wrong" precinct won't be counted [Dan Tokaji has the details here].

Ned Foley laments here that Ohio's Secretary of State will not allow international observers for Ohio's election.

Nader on the New Mexico Ballot

A.P. has the story here. The Nov. 16 Rasmussen poll had Bush 47%, Kerry 43% and Nader 2%.

Breaking News: Supreme Court Agrees to Hear Another Case Involving Party Primaries and Associational Rights

This morning the Supreme Court granted cert (order here) in Clingman v. Beaver, No. 04-37. The case below is Beaver v. Clingman, 363 F.3d 1048 (10th Cir. 2004). Here is how the 10th Circuit opinion phrased the question before it:

This case presents issues at the intersection of two Supreme Court cases concerning the associational rights of political parties in the context of primary elections. Oklahoma's election statutes currently provide for a semi-closed primary system, in which a party may invite only its own party members and registered voters designated as Independents to vote in its primary. Along with registered voters of the Republican and Democratic parties, the Libertarian Party of Oklahoma (the "LPO") filed a § 1983 action, alleging that the Oklahoma election statutes regulating primaries violate their rights to freedom of political association and free speech by preventing the LPO from inviting members of other parties to vote in its primary elections.
The district court found the Oklahoma statutes to be constitutional. Because we conclude that the election laws impermissibly violate the LPO's associational rights, we exercise jurisdiction pursuant to 28 U.S.C. § 1291 and REVERSE.

(1) protecting the LPO from "swamping" and "raiding"; (2) preventing voter confusion; (3) minimizing administrative difficulties; and (4) promoting and protecting "the integrity of the election process," which includes "preserving the political parties as viable and identifiable interest groups, insuring that the results of a primary election ... accurately reflect the voting of the party members, and prevention of confusion or misleading of the general electorate to the extent that the voting public often relies on party labels to make their choice.

California Enacts Laws Requiring Paper Trail for Touch Screen Ballots, Moves Primary Back to June

See this Sacramento Bee report.

"Watchdogs Demand Recusal By Smith in 527 Case"

Roll Call offers this report. You can find my earlier coverage (along with a link to the motion) here and Bob Bauer weighs in here.

"Group Wants Ballot Distribution Stopped"

A.P. offers this report, which begins: "Backers of an initiative to change the way U.S. Senate vacancies are filled in Alaska on Monday asked a judge to block printing and distribution of the Nov. 2 ballots, contending the state's summary of the measure is misleading."

"Flood of New Voters Signing Up"

A.P. offers this report.

Whatever Happened to the Florida Felon Disenfranchisement Controversy?

See here.

"Nader Dispute Lands at Supreme Court"

See this A.P. report.

Two Appellate Cases on Election Law Issued Today

The Eleventh Circuit issued an opinion reversing a federal court's decision to abstain in a case challenging Florida's touch screen voting system. The Sixth Circuit issued an opinion on the timing of special elections. Thanks to How Appealing for pointers to both opinions. UPDATE: You can find some commentary on the Sixth Circuit decision here.

Campaign Finance Reform Groups Up the Ante in Battle with FEC Chair Brad Smith

Democracy 21, the Camaign Legal Center, and the Center for Responsive politics have called on FEC Chair Brad Smith to recuse himself from hearing their complaint regarding the "Swift Boat Veterans for Truth" advertisements. You can find the press release and links to other documents here.

"Clerks Bemoan Breach of Confidentiality"

Legal Times offers this report (paid subscription required), on the recent Vanity Fair article on Bush v. Gore. Thanks to Howard Bashman for the link.

Bush v. Gore Redux, Redux

See Stuart Taylor's National Journal column, which along with Jeffrey Rosen's TNR column linked to last week shows that the mainstream press is finally coming to grips with the non-negligible possibility of post-election legal challenges to the presidential election results.

On KPCC this Morning

I should be on Larry Mantle's Airtalk (streaming audio available at this link) at 11:06 am PDT, talking about Colorado's Amendment 36.

"State's E-Vote Trust Builds Slowly"

The Los Angeles Times offers this report.

George Skelton on the Shelley Mess in California

See here.

"New Rules May Tangle Vote"

The Denver Post offers this report.

"Elections Heighten Terrorism Offensive"

The Washington Post offers this report.

"Still Seeking a Fair Florida Vote"

Former President Jimmy Carter offers this Washington Post oped.

"FEC Battle Likely to Land at D.C. Circuit"

Legal Times offers this report (paid subsciption required).

"Prop. 62 a Step to Open Primaries"

A.P. offers this report. A.P. also offers some information about how the proposition (and its rival, Prop. 60) are polling here. (Disclosure: I am a lawyer for the Prop. 62 proponents.)

"Election Boards Overwhelmed; New Registrations Straining Resources"

The Cleveland Plain Dealer offers this report.

"Interest Groups Spend Big in State"

The Milwuakee Journal-Sentinel offers this report.

"Campaign Finance Reform: FEC Needs Strong Bark"

The Philadephia Inquirer offers this editorial.

"Calling All Book Burners"

The New York Post offers this editorial, which erroneously attributes to FEC Chair Brad Smith the argument that "even books now risk running afoul of McCain-Feingold if they support or oppose a candidate for federal office." If I recall correctly, Smith was commenting on the probibition for corporate or union funding of television or radio advertising for books that (1) feature a candidate for federal office; (2) are targeted at the relevant electorate; and (3) made within 60 days of the general election. And if such advertisements are not intended to promote, support, attack or oppose a candidate for office, the advertisers can get an exemption from the prohibition.

"New Routes for Money to Sway Voters; 501c Groups Escape Disclosure Rules"

The Washington Post offers this front-page report

"A Hijacked People's Right"

The Los Angeles Times offers this editorial, with the following subhead: " The history of California's government-by-ballot-initiative is as virtuous as its results are too often destructive."

"New Pet Cause for the Very Rich: Swaying the Election"

This very important article appeared in Saturday's New York Times noting one of the major (unintended?) consequences of BCRA. I'll be writing more about this in coming weeks. See also Advocacy Groups Step Up Costly Battle of Political Ads.

"Why We Fear the Digital Ballot"

See this New York Times article.

Rauch on McCain-Feingold

See here.

"Kerry Campaign, DNC, To Run Joint Ads"

A.P. offers this report.

"FEC Proposes Rules for Recount Funding"

A.P. offers this report.

"Nader's Lawyer 'Tortured the Law'"

Law.com offers this report.

More Trouble for California's Secretary of State

See here. Update: And here.

"Nader Ballot Access Lawyer Seeks Permission to Withdraw"

A.P. offers this report.

"Legal Group to Track Judicial Elections"

A.P. offers this report.

"Ballots and Believers"

John Fund offers this column. Here is a taste, and don't miss the third paragraph:

The now famous "527" independent-expenditure groups, named after the section of the IRS code that governs them, have become the bête noire of this year's presidential campaign. Hardly anyone has praise for the negative campaigning of either the Swift Boat Veterans for Truth, challenging John Kerry's Vietnam record, or the MoveOn.org Web site, which has run ads comparing President Bush to Hitler.

But at least one independent-expenditure group claims to be completely positive in its approach and outlook. Let Freedom Ring, based in suburban Philadelphia, isn't spending anything to attack Sen. Kerry. Instead it is reaching out to people of faith to tout the record of President Bush. "We want to counteract the mudslinging that turns many Christians off of the political process," says Colin Hanna, its president. "Religious conservatives are a unique kind of 'swing voter' in that they don't swing between Bush and Kerry, but between Bush and not voting."

To further separate itself from 527 groups, Let Freedom Ring was formed as a 501c4, a nonprofit designation that allows groups to spend up to 49% of their donations on political activity without having to disclose contributors. It is attracting wealthy Christians who don't want to be seen as political but who are willing to support positive messages. Still, the group is agreeing to voluntarily disclose the names of contributors who finance any political TV ads they run.

"Plugging Holes at the FEC"

The Washington Post editorializes here. Bob Bauer responds (and also comments on the 501(c) issue related to the proposed 527 legislation) here).

" Pay-to-play ban temporary: Gov’s order only good through 2005"

The Trentonian offers this report.

New paper on tax credit for political contributions

Thomas Cmar has posted Toward a Small Donor Democracy: The Past and Future of Incentive Programs for Small Political Contributions on SSRN. Here is the abstract:

Political contribution incentive programs are a promising, under-explored means to address the problem of political equality in the American system of campaign finance. If properly designed, these programs - which include tax credits, refunds, and vouchers - could allow all Americans to participate on an equal basis in the crucial early-stage decisions that determine which candidates decide to run and are able to compete effectively. This article, written on behalf of U.S. PIRG, proposes a tax credit for political contributions as a first step toward building a small donor democracy

What, if Anything, Does the Vanity Fair Article Tell Us About Bush v. Gore?

For Supreme Court and election law junkies, the Vanity Fair article is a very interesting read (though I can't say I disagree with Will Baude's comment that the article has a "relentlessly partisan tone"). As a matter of pure prurient interest, it is hard to beat the article's quoting of Justice Scalia as saying the following about the majority opinion: "Like we used to say in Brooklyn...it's a piece of shit." Scalia denies disparaging the majority opinion. He signed a concurrence raising a separate rationale for ending the recount.

I think drafting histories can be useful, and have used them in my work, in understanding apparent gaps or inconsistencies in opinions. In this regard, the most valuable insight of the VF article, if it is to be believed, is how the dissenters dealt with the equal protection argument put forward by the majority. The article suggests that the dissenters failed to respond to the equal protection argument because it was not clear until near the end that this (rather than the Article II argument) would be the basis for the majority opinion. The article also states that Justice Kennedy added a line about seven justices agreeing with the equal protection rationale (but not the remedy) too late in the process for the dissenting Justices to do anything about it. (It states that it originally said 8 justices, until Justice Stevens protested, and later failed to concur in the relevant portion of Justice Breyer's dissent.) Regarding the equal protection language in the Souter and Breyer opinions, the article also notes that "whether [Justices Souter and Breyer had] come to believe that judging ballots under different criteria was really unconstitutional, or were still chasing after Kennedy, was never clear."

Finally, the article states that Justice Scalia convinced Justice Ginsburg to drop a footnote on disenfranchised black voters. (The article states that this "Al Sharpton footnote," as Scalia allegedly called it, was ostensibly wounding the Court's credibility.)

Of perhaps most interest is the fact that these clerks---again assuming the truth of the reporting---have chosen to talk about such a recent event on the Court involving sitting Justices with such detail and candor.

"U.S. Worries Over Election Terror Threat"

A.P. offers this report.

"Rematch: Bush v. Gore, Round 2"

Jeffrey Rosen offers this report at The New Republic (free registration required).

"Nader Files Appeal in Federal Court"

This is in the New Mexico litigation. See here.

Vanity Fair Article on Bush v. Gore Drafting History Now Posted Free on Line

SCOTUSBlog has posted the two parts with permission. You can access it at this link (beware of the slow download time).

"RVer Votes Could Affect S.D. Election"

A.P. offers this report. Thanks to John Nagle for the pointer.

"527 Ad Spending Heavy in Midwestern States"

The Center for Public Integrity offers this report.

Size of Individual Contributions to Swift Boat Veterans for Truth

Professor Roy Schotland of Georgetown did some sleuthing (actually, he simply examined some forms filed with the FEC) and came up with the following statistics on donations to Swift Boat Veterans:

Swift Boat Veterans for Truth Contributions
Contributors giving <$1,000 0
Contributors giving $1,000-$4,999 473
Contributors giving $5,000-$9,999 23
Contributors giving $10,000-$24,999 4
Contributors giving $25,000-$49,999 3
Contributors giving $50,000-$99,999 0
Contributors giving $100,000-$199,999 1
Contributors giving $200,000 or more 3
Total Contributors 507
Total Contributions $1,907,785.00
Source: FEC Form 9, Swift Boat Veterans for Truth Contributions, 9/10/2004

"Nader's Cash Runs Low as His Legal Costs Soar"

The Hill offers this report.

Dyson on 527s

Michael Eric Dyson offers this commentary on NPR's Tavis Smiley show.

"When Candidates Pick Voters"

Henry Louis Gates, Jr. has written this very interesting New York Times oped on whether section 5 of the Voting Rights Act should be renewed in 2007.

"U.S. May Audit Shelley's Use of Election Funds"

The Los Angeles Times offers this report.

"E-Voting: Trust But Verify"

The Los Angeles Times offers this editorial.

4th Circuit Upholds Virginia Redistricting Plan

Ed Still has all the details here.

Colorado's Amendment 36 (Proportional Allocation of Electoral Votes) Leads in Polling

See this report (via Political Wire). You can find some links to my analysis of the constitutional issues raised by the amendment here.

"Group Targeting Democrats on Ties to Trial Lawyers Draws Complaint to FEC"

A.P. offers this report. Thanks to Steven Sholk for the pointer.

"I'm Jared and I approved this message," says Subway's trimmed-down pitchman.

A funny, unintended consequence of BCRA.

"Voting Policies Impeding Students, Group Says"

The Washington Post offers this report.

Nader News Update

Howard Bashman has the scoop here. One needs a scorecard to keep up with this. See here.

"2 Studies Find Laws on Felons Forbid Many Black Men to Vote"

The New York Times offers this report.

Coverage of Introduction of New 527 Bill

See Roll Call; The Los Angeles Times; and the Washington Post.

In response to my questions in the post below this one, some on the election law listserv have suggested that the bill extends much wider than simply to 527s, encompassing any organization "described in" section 527 of the tax code. That would be very wide indeed. (See also Bob Bauer's analysis.)

The constitutional question I posed below is among the most difficult ones facing the issue not just of 527s, but also of organizations that are already considered political committees under the FECA but who engage only in independent spending. If there is a constitutional right to spend unlimited sums on electioneering independently, why not a right to contribute unlimited sums to these efforts? I've written a bit about this here, and one of my current projects will delve into this question more deeply.

New Bush Strategy for Coordinated Advertising?

The A.P. offers Bush Team Orchestrates Larger Ad Campaign, which begins: "President Bush's political team is orchestrating a vastly larger advertising campaign than thought possible under federal law, taking control of millions in Republican Party funds simply by inserting the phrase "our leaders in Congress" in selected commercials. The GOP strategy had gone unnoticed for weeks by Sen. John Kerry and the Democrats, who now may abandon their own less-cost-efficient approach to advertising."
No doubt, more on this in coming days as well.

Proposed 527 Legislation

The Campaign Legal Center has assembled these materials on the new legislation proposed by Sens. McCain, Feingold, and Lieberman and Members of Congress Shays and Meehan, intended to rein in 527s.

Two quick reactions:

1. Would reining in 527s simply push activity to 501(c)(3)s and other organizations?

2. Is it constitutional to limit contributions to 527s that engage solely in making independent expenditures? As readers of this blog know, I think this is a very difficult and uncertain question.

More to follow on this proposed legislation in coming days.

"The 527 Factor: It's Big in State Races Too"

The Christian Science Monitor offers this report.

"The Pentagon Doesn't Want You to Vote Overseas"

Salon.com offers this report.

Nader Off the Ballot in Illinois

In a very interesting opinion by Judge Posner, the Seventh Circuit has upheld a federal district court's refusal to grant a preliminary injunction requiring Illinois to place Ralph Nader's name on the ballot for president.
Along the way, Posner makes some very interesting observations about third parties in a "duopolistic" system and about the potential for ballot confusion.

"Activists Revive Fears About Oregon Voting"

The Oregonian offers this report, with the subhead: "Republican voices lead cries that mail-in ballots are ripe for tampering because they are opened before Election Day." Thanks to Greg Howe for the pointer.

"Nader Criticizes Efforts to Keep Him Off Ballot, Blames Kerry"

See this Washington Post report.

John Fund on Post-Election Day Litigation

See The Man with the Most Lawyers Wins, at the Wall Street Journal.

More opeds Against the FEC and Praising Judge Kollar-Kotelly's Opinion

See the Los Angeles Times. Bob Bauer takes on the Christian Science Monitor's editorial here.

"Bill to Rein in 527s Introduced"

Roll Call offers this report. The article quotes a number of posts on the election law listserv. I have posted something about the listserv's quotation policy for the press here.

"U.S. Chamber of Commerce's ads rile state business groups"

The Seattle Times offers this report. Thanks to a reader for passing it along.

More on Australia's Felon Disenfranchisement Policy

You can listen to a 30-minute Radio National program on this topic here.

Trevor Potter and David Magleby Talking About the Campaign Finance Rules on Minnesota Public Radio

Listen here.

Rush Limbaugh is Wrong

On his website, he writes: "Kerry has criminalized a couple of kids according to the new McCain-Feingold law, which he was a cosponsor. An eight-year-old and a six-year-old have been caught contributing $685 and $385 respectively in cash to the Kerry campaign, and they accepted it. The law makes it illegal for anyone under 17 to make political contributions or to contribute in cash."
Actually, the provision of the law barring contributions by minors was struck down by the Supreme Court in December.

"Campaign Sheriff on Vacation"

The Christian Science Monitor offers this commentary on the recent campaign finance decision.

"Voter Terrorism"

Salon.com offers this report with the following subhead: "For decades, Republicans have mounted highly organized operations to discourage minorities from voting. Experts say there's no reason to believe this year's presidential campaign will be any different."

"Republican fund-raising leads to indictments of 3 DeLay aides"

The Houston Chronicle offers this report. Thanks to a reader for passing this along.

Ballot Order Lawsuit in New Hampshire

See here. Thanks to a reader for passing this along.

Conference on Electronic Voting

The details on Thursday's Ohio State event are here. The link will also take you to the live webcast link.

"Party Lawyers Prepare for Post-Election Day Trauma"

A.P. offers this report.

Nader News and Commentary

The New York Times praises the Florida Supreme Court's decision to keep Nader on the ballot here. Pennsylvania news is here. USA Today's summary of Nader access is here.

Press Coverage and Commentary on Yesterday's Campaign Finance Opinion

Press coverage: New York Times; Washington Post; Wall Street Journal; Los Angeles Times; Roll Call; The Hill.; BNA.

Commentary: Bob Bauer; Democracy 21; New York Times.

Air America Interview on the Colorado Amendment 36 Constitutional Issue

You can access an mp3 (audio) version of Marty Kaplan's interview with me on this subject here.

Will the Campaign Finance Rules Come Into Effect for This Election?

Following up on this post, it seems pretty clear that the campaign finance rules are not likely to change for this election cycle. Judge Kollar-Kotelly (who, by the way, was one of the three judges deciding the McConnell case and whose conclusions in that case were pretty much adopted by the Supreme Court) expressly refused to enjoin the FEC's existing rules or to maintain jurisdiction over the case. (The plaintiffs wanted the FEC to have to continue reporting to the judge about its progress in rewriting the rules---given the judge's attitude toward the FEC, it is understandable why plaintiffs wanted this oversight.)

Instead, the court's remedy was simply to remand to the FEC "for further action consistent with this opinion." Quoting an earlier case, the court stated that "it is up to the agency to determine how to proceed next -- not for the Court to decide or monitor."

This updated A.P. report notes the following:

FEC Chairman Bradley Smith said he wanted the agency to appeal, and the commission's No. 2 member, Vice Chairwoman Ellen Weintraub, said an appeal was likely. They were uncertain when the six-member commission would vote on it.

Weintraub said it was her position that the current rules would remain in effect while the commission worked to comply with the ruling, and Smith agreed that the ruling seemed to say that. Smith said the might seek a stay of the ruling anyway to alleviate any uncertainty and avoid having to adopt new rules while the case was pending.

NPR's Peter Overby suggested the ruling could affect how 527s operate, listen here, but again, I have serious doubts this will apply to the current election cycle.

If all of this is correct, one of the oddest things about this ruling is its timing. The case had been pending for six months. Not only did the judge decide to issue it rather than hold it until after the election so as to avoid uncertainty, but the judge took the highly unusual step of issuing it on a Saturday. It is hard to see what the urgency is, given the judge's chosen remedy.
UPDATE: Over on the election law listserv, Trevor Potter disagrees with me here and I respond here.

Nader Off the Ballot in Arkansas, For Now

See here. Thanks to a reader for passing this along.
Richard Winger is on top of developments here, and you can find additional information at the Ohio State site here.

Nader Now on Ballot in New Mexico, Maryland

See here. and here.

"Early Voting Draws More Interest from Parties"

Roll Call offers this report.

Nader Vote Trading is Back

See this report. Is this a form of illegal vote buying? The issue is currently being litigated in California. Relying in part on my article, Vote Buying 88 California Law Review 1323 (2000), the ACLU is arguing before the district court that the reasons we generally think about for making vote buying illegal---that it is inegalitiarian, inefficient, or violates an inalienability norm---do not apply to vote trading between voters in different states. The ACLU further argues that vote trading on these websites is unenforceable, and therefore speech activity protected by the First Amendment under Brown v. Hartledge. Professor Jamie Raskin, quoted in the linked article, has been advocating such vote trading since 2000.

"Parties Direct Donors to States to Avoid Breaking Law"

See this report, which initially appeared in the New York Times.

McCain, Feingold, on Fixing the Presidential Public Financing System

Bloomberg offers this report.

Are 527 Ads Nastier?

See this report, originally from the Miami Herald.

Federal District Court Strikes Down Numerous BCRA Implementing Rules

In an opinion dated Saturday but more widely reported today, a federal district court struck down a number of Federal Election Commission rules implementing the McCain-Feingold (Bipartisan Campaign Reform Act/BCRA) law passed by Congress in 2002. I have not had a chance to review the lengthy opinion; Bob Bauer has posted some initial commentary here.

What impact will this ruling have on the rules for the upcoming election? It is not clear that it will have any impact. The judge remanded the case for additional proceedings at the FEC consistent with the opinion. I am not sure when the opinion becomes final, and whether there might be any stay sought of the ruling should the FEC decide to appeal the case to the D.C. Circuit.

I certainly hope that the rules that were in effect at the FEC will continue to be in effect for this election cycle. With just six weeks before the election, it would be chaos for some of the basic fundraising rules to be changed now.

UPDATE: See this A.P. report.

Does a Nader Win in Florida Mean a Loss in New Mexico?

See this story, which begins: "Ralph Nader was knocked off the New Mexico ballot Friday when a district judge ruled that he cannot run as an independent candidate in the state this fall. District Judge Wendy York said that, because Nader is affiliated with political parties in other states, he cannot run for president as an independent in New Mexico."
Of course, the vote in New Mexico for president last time was extremely close.

"Parties Anticipate Chaotic Election"

The San Francisco Chronicle offers this report.

"Parties Gird For Battle if Election Ends Up in Court"

The Wall Street Journal offers this report.

Staples on Felon Disenfranchisement

See this Editorial Observer column in the New York Times.

"How to Steal an Election"

Jeff Jacoby offers this Boston Globe oped.

More on Potential Legal Challenges to Colorado's Amendment 36

The Washington Post offers Colorado Initiative Could Be Key to Presidential Race, mentioning the potential Article II challenge that might be mounted should the presidency hang in the balance over Colorado's initiative to change the way its electoral votes are allocated (from winner take all to proportionally). I presented some earlier legal analysis of this issue in this post, which also links to my Los Angeles Times oped on the subject from earlier this week.

A few more thoughts now. First, responding to this hypothetical, my colleague Karl Manheim writes:

Doesn't this happen often with complimentary ballot items? I wouldn't have voted for Schwarzenegger had I known Davis would actually be recalled. I wouldn't have voted to limit the state's ability to borrow had I known the $16B bond would have passed, etc.

One further point. I have been saying since Bush v. Gore that whatever legal challenges to an election that can be brought before an election should be brought. And if they are not brought before the election, the legal challenge should be barred by the doctrine of "laches" after the election. Otherwise, people have an "option:" if the election goes the way I like, I don't raise the legal issue; if it goes the other way, I do. If opponents of Amendment 36 fail to seek pre-election review on Article II grounds before the election, will it be too late? The answer may turn on the extent of pre-election review in Colorado. If it is freely available for such claims, should a challenge be brought now? Indeed, may such a challenge already be barred by laches?

The New York Times Editorializes on Nevada's Electronic Voting Machines with Paper Trails

See here.

"Reforming the Reform"

Debra J. Saunders offers this column in the San Francisco Chronicle.

"Yet Another Layer of Tax Laws Shields Political Donors"

Peter Overby offers this Politically Speaking column on the NPR website.

"FEC Chairman is An Opponent of the Laws His Agency Governs"

The New York Sun offers this report (to subscribers only).

"Issue Ads? Let 'Em Rip!"

Stephen Moore of the Club for Growth offers this Washington Post oped.

Florida Supreme Court Puts Nader Back on Ballot

Howard Bashman links to all the news stories and the opinion itself here and here.

Blogging to Resume Next Week

See you then.

WRTL Case Not (Formally) Over

The plaintiffs will now seek an injunction from the entire Supreme Court. I give this move a negligible chance of success. See this press release.

Federal District Court Holds that South Dakota Legislative Redistricting Plan Violates Voting Rights Act

The federal district court case, Bone v. Hazeltine (CIV. 01-3032-KES 2004 DSD 18) does not yet appear on line. The judge has required the creation of another Native-American majority legislative district. Thanks to a reader for passing this along.

Prof. Tribe is Back Before the Florida Supreme Court Arguing an Election Case

I kid you not. See this post over at Abstract Appeal, which is following developments on the Nader ballot access case in Florida minute-by-minute. At the time I'm posting this, the blog is reporting that, as things stand this moment, Nader will not be on the ballot. A.P. also has this report.

Air America Interview

I should be on So What Else is News? with Marty Kaplan on Air America Saturday, talking about Colorado's Amendment 36. As always with radio and t.v, there's always the chance of the story getting bumped or mooted by subsequent events.

Interesting Election Law Events at Ohio State

Check out this page. The best news: the events will be web cast.

"Judge Won't Order Special N.J. Election"

A.P. offers this report.

Judge Denies Bush-Cheney '04 Request for Preliminary Injunction to Get the FEC to Act in a 527 Case

A.P.'s report is here; Bob Bauer's report is here.

Chief Justice Denies Injunction in WRTL Case

The Chief's two paragraph order is here. I am not surprised at the result. The order sheds little light on the broader question of "as applied" challenges to the electioneering communications provisions of BCRA.

New Report by Century Fund on Voting Reform

Tova Andrea Wang of the Century Fund has written African Americans, Voting Machines, and Spoiled Ballots: A Challenge to Election Reform. Here is the abstract:

In the wake of the 2000 presidential election debacle, Congress passed the Help America Vote Act to help prevent a replay of the Florida punch card–counting embarrassment that left many Americans wondering about the reliability of our voting system. The legislation requires that states employ voting systems that include features designed to minimize the number of uncounted (“spoiled”) ballots. It also provides funding for states to replace punch-card and lever machines, systems shown to be particularly prone to high rates of ballot spoilage. But many states' failure to implement these measures threatens to undercut the reliability of the 2004 election results for a variety of reasons, one of which has received far too little attention: African-American votes disproportionately go uncounted when punch-card and, to some extent, “central count” optical-scan machines are used.

"Court Rejects Electronic Voting Lawsuit"

A.P. offers this report, which begins: "ANNAPOLIS, Md. - The state's highest court on Tuesday rejected a demand that citizens who do not trust touch-screen voting machines be given the option of using a paper ballot and that Maryland be required to take additional steps to protect the security of the Nov. 2 election."

"Battle Intensifies Over Placing Nader on Florida's Presidential Ballot"

The Sun-Sentinel offers this report.

"Court Says No to Metcalfe on the Ballot"

See this report, which begins: "The Alaska Supreme Court acted quickly Tuesday afternoon to reverse a lower court order and strip Republican Moderate Party candidate Ray Metcalfe's name from the Nov. 2 general election ballot."

"Clean Elections Fight Rages"

See this report from Arizona.

Is CBS Not Entitled to Campaign Finance Law's Media Exemption?

See the very doubtful claim made here.

"Debating Deregulation of Campaign Finance: What Can Be Done? What Should Be Done?

The Federalist Society will be holding this event at noon on October 14 in Washington D.C. Confirmed participants include:
* Mr. Craig M. Engle, Arent Fox
* Mr. Craig Holman, Legislative Representative, Public Citizen
* Mr. Michael J. Malbin, Executive Director, Campaign Finance Institute
* Mr. Stuart Taylor, National Journal
* Ms. Allison Hayward, Federal Election Commission, Moderator
More details about the event are here.

"The California Recall Punch Card Litigation: Why Bush v. Gore Does Not Suck"

I have posted this working paper on SSRN. Here is the abstract:

The unprecedented California recall election of 2003 also spawned an unprecedented amount of litigation over the rules for the recall itself. Much of that litigation was patently frivolous, an attempt to throw up as much as possible against the recall to see what would stick in the interest of delaying or scuttling the recall. The recall litigation became part of what I have termed election law as political strategy.

But some of the litigation had merit. This paper focuses on one of the meritorious cases, litigation over the use of punch card ballots in Los Angeles and a handful of other California counties in the recall election. Plaintiffs' argument was that the selective use of punch card voting technology, with its extraordinarily high error rates, violated the equal protection rights of voters under the United States Supreme Court’s decision in Bush v. Gore (2000). Bush v. Gore was the case that ended the recount of votes in Florida following the November 2000 presidential election.

A federal district court judge rejected the argument, but a three-judge panel of the Ninth Circuit accepted it, ordering a delay in the election until the counties could replace their punch card machines with other technology. A larger (en banc) panel of the Ninth Circuit quickly reversed the panel ruling, and the recall election took place as scheduled.

In a recent California Law Review article, Professor Vikram Amar was very critical of the original Ninth Circuit panel's decision to delay the recall, and even more critical of the Supreme Court's decision in Bush v. Gore. Indeed, in a recent roundup of the top ten lessons of the recall, Amar lists Bush v. Gore sucks as his number one lesson about the recall: the Supreme Court senselessly chose not to be explicit about things in Bush v. Gore, thereby allowing courts such as the Ninth Circuit panel to dubious[ly] interpret the decision as a reason to delay the recall election.

In this paper, I take issue with Amar. Far from sucking, the Bush v. Gore opinion had the salutary purpose of focusing the attention of the public, elections officials, and - as in the case of the recall - the courts, on some important yet neglected issues of the nuts-and-bolts of democracy. The debate the case has spawned, and the reforms it has started in motion, have thus far had a salutary effect on the Nation's democracy, even if that may not have been the intent of the Supreme Court Justices who decided the case. In Part I, I describe the California punch card litigation in the context of the Bush v. Gore precedent. In Part II, I defend the original three-judge panel's opinion as a permissible application of Bush v. Gore, and I explore more generally how Bush v. Gore has affected the debate over the nuts and bolts of our democratic process.

More Dueling Initiatives in California

See Foes Say Gambling Vote Could Foil State in the Los Angeles Times.

"Parties Strategize on Recounts"

Roll Call offers this report.

Coverage of New 527 lawsuit

See this brief New York Times report and this Marketplace (audio) report.

More on Colorado Initiative: Due Process Argument

A reader writes with the following hypothetical:

It was my thinking ...that there would actually be a legitimate case against applying the initiative retroactively for this reason: As a voter, I would walk into my polling place not knowing the manner in which my vote will be counted. Let's say I truly support Nader, but want to vote strategically. I could reasonably feel that in an all-or-nothing system I would vote for Kerry, whereas in a proportional system (since the consequences of a Bush victory in CO are much less with respect to the electoral college) I would vote for Nader. Does this not present a constitutional problem?

"Kerry Asks FEC for Recount Advice"

A.P. offers this report.

FEC Response in WRTL Case Now Posted

You can find it here.

All the Gory Details on the Nader Florida litigation

You can find the details, including the Florida Supreme Court's orders issued thus far in the case (there have been two) over at Abstract Appeal.

"How One Elector Could Yet Tilt U.S. Election"

The New York Sun offers this article. Thanks to a reader for the pointer.

Will Colorado's Electoral College Initiative End Up at the Supreme Court?

I have written an oped, Nov. 2 Debacle in the Making, for today's Los Angeles Times. Here is some additional analysis on the Article II issue that did not make it into the newspaper:

No doubt, opponents of Amendment 36 will argue that the initiative, a piece of legislation to be passed by the voters of Colorado and not the Colorado Legislature, likewise violates Article II. There is a 1916 Supreme Court case out of Ohio (though somewhat challenged in a 1920 case) interpreting the word “Legislature” to include the initiated legislation, which would seem to preclude an Article II challenge to Amendment II.
But the 1916 authority predates the revival of the Article II argument by at least three members of the Supreme Court in the Florida controversy. How would the Supreme Court handle the issue if it arises, again in the context of a disputed presidential election where time will necessarily be of the essence?
Just last June, Rehnquist, Scalia, and Thomas had a chance to write about this issue yet again, in a case, ironically, emanating from Colorado. The question before the Court was whether the Colorado Supreme Court usurped the power of the Colorado Legislature to set the terms for congressional elections by ruling that the Colorado Constitution permits redistricting only once per decade.
A majority of the Supreme Court declined to hear the case, but the Chief Justice, and Justices Scalia and Thomas embraced their theory from Bush v. Gore and voted to hear the case. And along the way, the Justices distinguished that 1916 case, finding Colorado’s system of legislative power to be different from Ohio’s.
Would at least two other Justices be willing to consider finding Amendment 36 a violation of Article II, in the context of deciding yet another presidential election? There is no way to tell. One hopeful sign, for those who do not want to see Supreme Court intervention again so soon and so prominently, is that the Court declined to hear a similar challenge a few years back, when the New Jersey Supreme Court held that Democrats could replace the name of Robert Torricelli on the ballot with Frank Lautenberg, after Torricelli withdrew close to election day.

Two from WSJ

The Journal editorializes here about Ralph Nader and the ballot access lawsuits and offers an article here on non-citizen voting in school board elections. Thanks to Steven Sholk for the links.

"Dems Sue to Block Nader"

The Rocky Mountain News offers this report.

"Appraising BCRA: The Early Returns are Troubling"

Bob Bauer writes this Roll Call oped, responding to Norm Ornstein's column on 527s last week. A snippet:

While Ornstein is right to take the president to task for proposing the abolition of 527s, he is making matters seem simpler than what they are. The law did not completely abolish 527 ads, but it does prohibit some of those ads, run some of the time, if the 527 is incorporated or accepts corporate or union money — but not if it accepts unlimited individual monies. A little more presidential precision on these points would have been commendable, but it was hardly to be expected.

"Reformers Prepare Suit on 527s"

Roll Call offers this report, which begins: "Reps. Marty Meehan (D-Mass.) and Christopher Shays (R-Conn.), with help from the same legal team that successfully defended their campaign finance reforms before the Supreme Court, will file suit against the Federal Election Commission today, claiming that the agency has acted negligently by failing to rein in the independent campaign-related groups known as 527s."

Will Florida Supreme Court Intervene to Keep Nader off the Florida Ballot?

See this A.P. report and this Reuter's report.

"Dementia and the Voter"

Don't miss this fascinating article in the Washington Post.

"Md. Senator Sees Error by Voting Machine"

A.P. offers this report.

AALS Workshop on Democratic Governance

The American Association of Law Schools' annual meeting will feature a workshop on Democratic Governance. See pages 4 and 5 of the online brochure.

Wall Street Journal article on electronic voting

See here.

"Challenge to Electoral College in Colorado Could Have Big Impact"

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

Voter Fraud and Voter Intimidation

It must be close to the election. Around election time, particularly close elections, Republicans and their supporters start making claims of vote fraud. These claims typically involve voting in urban areas. See, for example, John Fund's new book, Stealing Elections.

Democrats and their supporters claim that there will be voter intimidation, particularly suppression of the black vote. (A belief among some core Democrats in Florida is that the Black vote was deliberately suppressed there in 2000, though I think that this remains a controversial claim.) As I noted Saturday, John Kerry made such allegations in a speech to the Congressional Black Caucus Foundation. Today, we see two more examples of the argument, Bob Hebert's New York Times column, Protect the Vote, and Jeffrey Toobin's New Yorker article, Poll Position: Is the Justice Department poised to stop voter fraud—or to keep voters from voting?

Though these allegations are often made on both sides, they are very difficult to prove. It will be up to the media to check both sorts of claims carefully on election day.

"Competing Measures Add to Complexity of State Ballot"

The Los Angeles Times offers this report.

"White House Book At BC '04 Event Raises Questions"

The Forward offers this report, which begins: "The White House and the Bush-Cheney campaign are denying claims that they may have violated the law by distributing a White House-generated booklet hailing the president's record on Jewish issues at a campaign event." Thanks to Jeff Wice for the link.

Bauer on WRTL As-Applied Challenge

See here.

Novak on Nader

See here.

"Political Ads Get a Hollywood Disguise"

The San Francisco Chronicle offers this report.

"Setting the Record Straight on Voter Reciepts"

Rep. Bob Ney offers this Roll Call oped (paid subscription required) about the Holt bill to require paper receipts of electronic ballots.

"Ending Felon Disenfranchisement in the United States: Litigation or Legislation?"

The Democratic Audit of Australia at the Australian National University asked me to write a short piece about the status of felon disenfranchisement laws in the U.S. You can find my piece here.

527s Make the Cover of Tomorrow's Newsweek

As part of the cover story on the "Slime Campaign," the main 527 story is here (corrected link). Sen. John McCain's related editorial is here.

Should 527 Disclosure Laws Be Tightened?

See this editorial in the Kalamazoo Gazette.

"On the Voting Machine Makers' Tab"

The New York Times offers this editorial, which begins: "As doubts have grown about the reliability of electronic voting, some of its loudest defenders have been state and local election officials. Many of those same officials have financial ties to voting machine companies. While they may sincerely think that electronic voting machines are so trustworthy that there is no need for a paper record of votes, their views have to be regarded with suspicion until their conflicts are addressed."

"Kerry Suggests Rivals Might Suppress Black Votes"

The New York Times offers this report.

"Distributing Free Speech"

Alan Reynolds has this commentary at the Cato Institute's website.

Articles on Donors to Swift Boat Veterans Group

See this New York Times report and this Washington Post report.

"Did Bush Camp Error on Ballot Papers?"

See this St. Petersburg Times report. Thanks to Richard Winger for the pointer.

"Democrats Dispute Soft Money Ads"

See this report from Alaska. Thanks to Dan Smith for the pointer. It is not clear to me why these ads were pulled. Presumably, this group either is a corporation or takes corporate or union money. The article is sloppy in referring simply to a "deadline had passed for airing soft-money advertising for federal candidates."

White House Again Accuses Kerry of Illegal Coordination with 527s

See this transcript of a briefing with reporters. The relevant snippet:

Q Scott, on the National Guard documents, do you have any suspicions about their authenticity?

MR. McCLELLAN: We don't know whether the documents were fabricated or are authentic. You know, the media has talked to independent experts who have raised questions about the documents. CBS has not disclosed where the documents came from. But, regardless, it does not -- the documents do not change the facts. The President met his obligations and was honorably discharged. And the one thing that is clear is the timing and the coordination going on here. There is an orchestrated effort by Democrats and the Kerry campaign to tear down the President because of the direction the polls are moving. And it's not surprising that we're seeing the same old recycled attacks. The Democrats are determined to throw the kitchen sink at us, and I suspect this is just the beginning.

Q When you use the word "coordination," it seems to suggest in a legal sense that the Kerry campaign is illegally coordinating with the 527 --

MR. McCLELLAN: It's clear. I mean, look at the media reports, they've documented the coordinated efforts by Democrats to tear down the President here, because they're falling behind in the polls. You look at the -- The Washington Post had a story about it today, talking about the multi-front effort by the Democratic National Committee, other Democrats. You have outrageous comments being made by Senator Harkin. You have the Democratic National Committee using the term "Operation Fortunate Son." "Fortunate Son" was the name of a book by an ex-convict that was widely discredited in the 2000 campaign.

Q But what I'm saying is, you're essentially accusing Mr. Kerry of violating McCain-Feingold, it sounds like.

MR. McCLELLAN: What I'm saying is that the Democrats are seeing the direction the polls are moving and they are now -- and they are determined to tear down the President, they are determined to throw the kitchen sink at us.

We're focused -- the President is focused on his agenda for the future and where he wants to lead this country. The Democrats are focused on tearing down the President with the same old recycled attacks, because they're falling behind.

"FEC Asks Court to Drop Bush Campaign Suit"

A.P. offers this report.

Chief Justice Rehnquist Asks for Response from FEC in Wisconsin Right to Life BCRA Case

The order is here, requesting an FEC response by September 13. The plaintiffs' request for an injunction is here. You can find links to my earlier coverage of this case here.

Court rules Nader eligible for Oregon Ballot

See here. Thanks to a reader for passing this along.

"Third Parties Seen as Threat to Bush"

The Washington Times offers this report. Thanks to Political Wire for the link.

Donations to "Texans for Truth"

See this A.P. report. A.P. also offers More Smaller Groups Airing Political Ads.

The Miami Herald Story on the Nader Florida Ballot Access Litigation

See here. See also this A.P. report.

More litigation over McGreevy (Non-)Resignation

See this report. Thanks to a reader for passing it along.

Joshua Spivak on Possible Recall in Austin

See this commentary in the Austin American Stateman. Last month, Spivak published Time to Pay Attention to Campaign Financing in USA Today.

Republican Governors Association Fined in N.C.

See this Charlotte Observer report. Thanks to a reader for passing the link along.

Presidential candidates speak out on campaign finance

A.P. has posted these responses from Bush and Kerry to the question: "What further campaign finance controls do you support, if any?"

FEC Allows Car Ads to Go Forward

A.P. offers this report. Don't be fooled by the misleading headline.

"Nader Off the Ballot in Florida"

See this report. Thanks to Richard Winger for the report. This is one to watch, because the stakes are so high.

"Get out the vote now; Bush-Cheney gets businesses’ help in rush to the polls"

The Hill offers this report.

Third Edition of Election Law Casebook Now Available; Teacher's Manual Completed and Will Be Shipping Soon!

The Third Edition of Lowenstein & Hasen, Election Law---Cases and Materials has already shipped to bookstores for those using the casebook this semester. It will go out to other election law professors, along with the just completed teacher's manual, shortly. If you are a professor and need assistance obtaining either the book or manual, send an e-mail to linda-at-cap.press.com. The link above will allow you to order a copy directly from the publisher.

Ohio Marriage Amendment Signature Verification Process

One thing I'll be writing a great deal about on this blog in the coming months is the need for more nonpartisan election administration. Example number one comes by way of Chris Geidner's Law Dork blog. See here.

Two Campaign Finance Papers on SSRN

John M.P. De Figueiredo and Beth Garrett have posted Paying for Politics. Here is the abstract:

Even in the wake of the most sweeping campaign finance reform law to be enacted in three decades, further significant reform is inevitable. Special interest money continues to flow through loopholes in the Act, and the Presidential Election Campaign Fund is near collapse. The next reform should encourage broader participation in the political process by individual citizens, both to dilute the power of special interests and to serve independent democratic values that recent Supreme Court jurisprudence has identified as vital to meaningful reform. We propose adopting a refundable tax credit of $100/taxpayer for political contributions to federal candidates and national parties; the credit would be targeted to lower- and middle-income Americans. A refundable tax credit is equivalent to giving each eligible citizen up to $100 annually to use for political contributions. We also present data about the relative importance of political contributions by special interests (corporate, labor and other PACs) and individuals that undermine many of the assumptions on which past reform has been based and that have not been discussed in the legal literature. The data clearly show that small contributions by individuals are the dominant source of money in campaigns, and that the influence of special interest money is subtle, appearing to purchase benefits like access, a place on the agenda, and minor policy details. Working from an accurate picture of who really pays for politics, and drawing from the experience at the federal and state levels with similar tax refund programs, we present the tax credit as a reform that is simple, easy to administer, and likely to improve political participation by average Americans. Thus, our proposal, unlike the complicated voucher plan with anonymity put forward by Ackerman and Ayres, is likely to be adopted by Congress; moreover, it will appeal to a bipartisan consensus because it mixes public funding with a decentralized allocation mechanism using a tax subsidy.

Gregory Klass has posted The Very Idea of a First Amendment Right of Compelled Subsidization. Here is the abstract:

On March 24, the Supreme Court granted certiorari in Veneman v. Livestock Marketing Associations, Docket No. 03-1164, which presents the question of whether mandatory assessments on beef producers used to fund generic beef advertising violate the First Amendment rights of dissenting industry members. The Court undoubtedly decided to hear the case to resolve the sharply diverging reasoning in its two earlier decisions on industry-association advertising, Glickman v. Wileman Brothers and Elliot, 521 U.S. 457 (1997), and United States v. United Foods, 533 U.S. 405 (2001).

This article discusses the compelled subsidization doctrine, which holds that there is a First Amendment right not to subsidize the speech of others. The Supreme Court has considered the First Amendment rights of dissenters in the context of mandatory union dues, bar association payments, state university student fees, and industry-association advertising. This article argues that the Court has failed in these cases to formulate a clear, universally applicable test for deciding when the right against compelled subsidization is violated, and that this failure results from the lack of a coherent account of what First Amendment interests are at stake in compelled subsidization. It also recommends an alternative account of wherein the right lies, which is the danger of covert state subsidization of one side or another in public debate on contentious political or ideological issues. From this account follows a new general test: The compelled subsidization of the speech of others violates the First Amendment just when the funds collected are used to promote the message of an identifiable viewpoint or interest in debate on a controversial political or ideological issue.

In addition to making specific recommendations on how Veneman should be decided, the article briefly describes the connections between the compelled subsidization doctrine and the Court's recent rulings on campaign finance regulation, particularly McConnell v. Federal Election Commission, 124 S.Ct. 619 (2003). Not only do both lines of cases raise the question of whether money is ever speech, but both also turn on the extent to which the First Amendment protects not only individual expressive rights, but the integrity of public political debate.

Dorf on 527s

See this Findlaw column.

In the election law mailbag

Michael Waterstone has published "Civil Rights and the Administration of Elections---Toward Secret Ballots and Polling Place Access," 8 Journal of Gender, Race & Justice 101 (2004). Ann Laquer Estin has written a response, "Voting Rights and Human Rights: Comments on 'Civil Rights and the Administration of Elections," 8 Journal of Gender, Race & Justice 177 (2004).

The Economist on Electronic Voting in Venezuelan Recall Election

See here. Thanks to Fabrice Lehoucq for the link.

"FEC Probes Tauzin Money-Transfer Claim"

The Hill offers this report.

Two Opinion Pieces in Roll Call

Roll Call offers an editorial entitled "Fraud" at Polls and an oped by Norm Ornstein entitled Congress, the President Will Find Easy Answers Don't Cut it on 527s. Paid registration required.

"Virginia is 6th State to Keep Nader Off Ballot"

The New York Times offers this report. See also this Washington Post report.

"State Joins Suit Over Voting Machines"

The Los Angeles Times offers this report.

"Ad Sponsor Could Be Fined"

See this interesting news piece out of North Carolina. Thanks to a reader for passing this along.

Electoral College Opinions

The Wall Street Journal offers an editorial entitled Electoral College Mischief. The Brothers Amar write The Electoral College Votes Against Equality in the Los Angeles Times.

"Nev. 1st Touch Screen, Paper Trail Voters"

A.P. offers this report.

"Ridge: Terrorists Hope to Disrupt Election"

A.P. offers this report.

Wisconsin Right to Life Case Goes to Supreme Court

A.P. has this report. I view it as very unlikely that the Chief Justice will issue the injunction as requested, or that the Court will ultimately review this case. See here for some of my earlier coverage of this case.

"Advocacy Groups and Campaigns: A Shaky Shuttle"

The New York Times offers this report.

"527s Were Stealthy in Big Apple"

The Hill offers this report.

"McCain-Feingold Failed---Fund Campaigns Publicly"

Derek Cressman offers this oped in The Hill.

"Voter ID Problems in Florida"

The New York Times offers this editorial.

"One Person, One Vote? Not Always."

The Kansas City Star offers this report, which begins: "In today's often tight elections, every vote counts. But a Kansas City Star investigation has found that for some people, locally and across Missouri, their vote counts double — because they voted twice in the same election.Some vote in Kansas, cross the state line and vote again in Missouri. Others appear to be voting in two different Missouri counties." Thanks to Steven Sholk for the pointer. Today's Star also offers Right to Vote v. Right to Secrecy: State's E-Mail Plan for Military Raises Security Questions.

"Many Exploit Loopholes in Campaign Finance Law"

The Dallas-Fort Worth Star-Telegram offers this report.

"Hopeful's E-Vote Fight Raises Verification Issue"

A.P. offers this report.

Nader oped

Ralph Nader writes Parties to Injustice in the Washington Post. Thanks to Richard Winger for the pointer.

"Problems Abound in Election System"

The Washington Post offers this front page report. Thanks to Steven Sholk for the pointer.

"Denying the Troops a Secret Ballot"

The New York Times offers this editorial.

"G.O.P. Begins New Push as Rules on Money Change"

The New York Times offers this report.

"McGreevy Deadline Passes Without Drama"

NJ.com offers this report.

New Money and Politics Blog

Sean Treglia of USC's Annenberg School has started the Money and Politics Blog. Here is his description: "The Money and Politics Blog is dedicated to fostering excellence in media coverage of campaigns, elections, and the role of money in the political process. The materials and commentary included there are designed to illustrate and promote best practices for media coverage of money in politics by highlighting examples of well written or effectively produced stories. The authors of this Web site offer their own opinions and ideas about the various stories highlighted and hope visitors will engage in lively discussion to generate new story leads and ideas and to explore the meaning of best practices."

"Electoral Math Offers a Number of Nightmares"

USA Today offers this report.

"Ads Set to Target Trial Attorneys; But Election Lawyers Wonder Whether they Are Allowed Under McCain-Feingold Law"

The ABA E-Report offers this article. Thanks to Steven Sholk for the pointer.

Eighth Circuit Dismisses Challenge to Minnesota False Speech Case for Lack of Standing

See this opinion issued on August 26 and referenced in today's BNA Money and Politics Report.

"In New Law's Wake, Companies Slash Political Donations"

The Wall Street Journal offers this report. Thanks to Steven Sholk for the link, who also passes along a link to Aging High Court Looms Large.

"New statewide election ordered for Judgeship"

The Atlanta Journal-Constitution offers this report, which begins: "The Georgia Supreme Court took the rare step Thursday of ordering a statewide election be held again. The high court ruled in favor of a legal challenge from Atlanta lawyer Howard Mead, the third-place finisher in the July 20 nonpartisan race for an open seat on the Georgia Court of Appeals. Mead asked for a new election after being misidentified on 481 absentee ballots in Laurens County as 'Thomas Mead.'" Howard Bashman has more links and details here.

Pending Election Law Cases in the Supreme Court

When the Supreme Court begins its October 2004 term, it will have the chance to take up a few very interesting election law cases.

First, there are the Texas redistricting cases up on appeal, meaning the Court must summarily affirm, reverse, or set the cases for argument. (A New York redistricting case, Rodriguez v. Pataki, is also before the Court).

Kentucky has petitioned for cert in a case raising the question whether the "express advocacy" test has any constitutional significance after McConnell. Stumbo v. Anderson, No. 04-103 (cert. petition from Anderson v. Spear, 356 F.3d 651 (6th Cir. 2004)).

Convicted felons challenging New York's felon disenfranishment law under Section 2 of the Voting Rights Act have petitioned for cert in Muntaquim v. Coombe, 04-175 (below, 366 F.3d 102). Because the Second Circuit held there was no Section 2 violation, I think the Court is unlikely to take this case. It is more likely to take the Ninth Circuit or Eleventh Circuit cases (if cert. is sought in those cases), which held that a Section 2 violation is possible. The Ninth Circuit case featured a strong dissent from Judge Kozinski (Update: The Ninth Circuit case is also pending.)

Important Campaign Finance Disclosure Case

On August 6, while I was gone, the Ninth Circuit decided ACLU of Nevada v. Heller, striking down a Nevada campaign finance disclosure law. The court expressly disagreed with the Seventh Circuit's opinion in Majors v. Abell upholding a similar Indiana statute.

This is a significant development, and indicate that not all courts will read the Supreme Court's opinion McConnell as a green light for disclosure laws in candidate elections. Nevada might have a fair chance of getting the Supreme Court to hear the case, given the circuit split now created.

In the Election Law Mailbag

While I was travelling, I received the following publications:

Campaign Legal Center, The Campaign Finance Guide.

Adam Cox, Commentary: Partisan Fairness and Redistricting Politics, 79 New York University Law Review 751 (2004)

Barry Hindess, Corruption and Democracy in Australia (part of the work of the Democratic Audit of Australia).

Raleigh Hannah Levine, The (Un)informed Electorate: Insights into the Supreme Court's Electoral Speech Cases, 54 Case Western University Law Review 225 (2003).

Michael Saxl and Maeghan Maloney, Essay, The Bipartisan Campaign Reform Act: Unintended Consequences and the Maine Solution, 41 Harvard Journal on Legislation 465 (2004)

Christopher P. Zubowicz, The New Press Corps: Applying the Federal Election Campaign Act's Press Exemption to Online Political Speech, 9 Virginia Journal of Law and Technology 1 (2004) (eventually this should be posted here).

"Cast A Ballot from the Couch: Absentee Voting Gets Easier"

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

"PAC Fundraising Up By 27 Percent, FEC Reports"

Roll Call offers this report.

Torricelli Redux?

See this A.P. report entitled "Deadline Looms for Scheduling Special Election."

"Soft Money Ban Prompts Campaigns to End Giveaways"

A.P. offers this report.

"Elections Board Refuses to Regulate 'Issue Ads'"

See this Milwaukee Journal-Sentinel report.

Nader Ballot Woes

See here.

"Designer of Confusing Ballot Loses in Palm Beach County"

A.P. offers this report.

Maryland Judge Rejects Challenge to Electronic Voting

I have posted the opinion here. Dan Tokaji has more detail and commentary here.

Back from Down Under

I had an enjoyable and productive trip to Australia, New Zealand, and Hawaii. I spoke about campaign finance issues in the U.S. elections at the University of New South Wales and at Griffith University (Brisbane). Radio National Breakfast (the equivalent of NPR's "Morning Edition") also interviewed me on the topic, and you can hear the interview at this link. I also met New Zealand's leading election law person, Andrew Geddis, in Queenstown.

Most of the work part of my trip, however, was devoted to a study of Australia's system of nonpartisan election administration. I'll be writing about the extent to which the Australian model is transferable to the U.S. later this year. I was fortunate to meet with most of the top experts on Australian election law.

While I was away, there were of course many developments in American election law. The most important developments have to do with the most recent 527 explosion involving an anti-Kerry group. If you peruse the archives of the election law listserv for August here, you can find a lively debate over President Bush's response to the ads of the "Swift Boat Veterans for Truth." (One of President Bush's election lawyers, Ben Ginsberg, left the campaign after advising the group.) In the meantime, the Washington Post reports this morning that "Bush Sues to Stop '527' Groups Backing Kerry."

There were two other significant campaign finance developments in the month of August. First, a three-judge court turned back (at the preliminary injunction stage) an as-applied challenge to BCRA's electioneering communications provisions. The court's memorandum reads McConnell in the same way I do as all but excluding the chance of "as applied" challenges. Further appeal in this case is possible. For more coverage, see Marty Lederman's SCOTUSBlog posts beginning here.

The second important campaign finance case is the Second Circuit's decision in Landell v. Vermont Public Interest Research Group. In this case, the Court of Appeals held that expenditure limits can be constitutional under the right circumstances. Assuming this case is not reversed en banc, it is hard to imagine the Supreme Court not reviewing this decision, which is in sharp tension with Buckley v. Valeo, though less so, as I've explained elsewhere, with the Supreme Court's more recent McConnell decision.

There were also other election law developments in August, including a great deal of litigation over Ralph Nader's ballot access efforts. (Richard Winger collects most of the litigation news at his valuable website.)

The California Supreme Court agreed to hear the separate vote challenge to Proposition 60, a measure put on the legislature in an attempt to defeat Proposition 62, which would establish a voter choice open primary in California. (I am a lawyer for the Proposition 62 proponents.)

I'll try to fill in some details on other election law issues in coming days, and as the election season hits full steam after Labor Day.