Three from ABA E-Journal

See Provisional Ballots Add to Tally Confustion

Lawyers Answer Call for Duty in Battleground States

Rocking the Vote (on potential legal challenges to Colorado's Amendment 36)

Justice Thomas Speaks Out on Bush v. Gore

See this A.P. report. A snippet:

"What are you supposed to do when somebody brings a lawsuit?" Thomas asked University of Kansas law students. "You hear people say the Supreme Court jumped into the last election. I find it very ironic that the very people saying judges are interfering are bringing lawsuits."

"What do you think? Donald Duck is going to decide it?"

When asked about the prospect of more litigation over the 2004 vote, Thomas said, "I would prefer not to have to decide it, but that joins a long list of things," adding: "It's my job."

Of course, Bush v. Gore came up as a matter of discretionary review. The Court could have decided not to take the case.

"People Who Vote Twice"

Slate has posted this column.

"Provisional Ballot Controversy Nears End"

A.P. offers this report, with an overly optimistic headline.

"Ohio's Electoral Process in Disarray"

A.P. offers this report, which begins: "Ohio's attorney general on Thursday appealed a federal judge's order that halted hearings on Republican challenges to thousands of voter registrations in this pivotal battleground state." I had thought (from my limited understanding of civil procedure) that TROs are not appealable in federal court. Perhaps I'm wrong about that.

More on a Recess Appointment to Decide "Bush v. Kerry"

See this Slate column by Mark Moller.

New Ohio Voting suit

Dan Tokaji has the details here Dan reports: "The lawsuit alleges that the practice of challenging voters on election day denies the voting rights of African Americans in Hamilton County."

More on West Virginia's Potential Faithless Elector

See here.

"Gov. Bush: Poll Watchers Can, Should Challenge Voters"

The St. Petersburg Times offers this report, which begins: "Gov. Jeb Bush said Wednesday he would have no problem if Republican poll watchers challenge the eligibility of voters before they cast ballots on Election Day, despite growing concern that it could create gridlock and scare away qualified voters."

Challenge to Kerry Elector?

Electoral-Vote.com notes the following:

Stupidity news: One of Kerry's electors in Ohio, Rep. Sherrod Brown, is a congressman. Unfortunately, the constitution forbids federal office holders from being electors. It is possible that if Kerry wins Ohio, Brown's right to cast an electoral vote will be challenged in court. Whoever picked a constitutionally ineligible elector needs to get his or her mental software ungraded to the latest release.

Brown is indeed listed as a presidential elector: see here on page 11.
I assume that this would be an issue to be taken up, if necessary, in Congress when it counts electoral votes. I'd like to hear about any theories that could land this in court. UPDATE: A reader writes: "My understanding (from Rep. Brown’s office) is that Rep. Brown has resigned and that the chairman of the Ohio Democratic Party will be able to appoint another elector." I'll let you know if I receive confirmation of this report.
CQ is now reporting:

Rep. Sherrod Brown, D-Ohio, said today that he is giving up a job he
shouldn't have accepted in the first place as one of the 20 presidential
electors from Ohio if Democrat John Kerry carries that fiercely contested
state. The U.S. Constitution specifies that states shall not appoint as
electors any "senator or representative or person holding an office of
trust or profit under the United States." That very clearly includes a
sitting member of the House of Representatives. "We fixed it," Brown said.
"We sent a letter to the state party and they're going to accept,
obviously, the resignation and appoint someone else." He added, "I'd
rather it hadn't happened." The Ohio Democratic Party did not immediately
return messages seeking information about its Electoral College
replacement for Brown, who once served as Ohio's top elections official.
The six-term congressman is heavily favored to win re-election next week
repr! esenting the 13th District, which encompasses Cleveland suburbs and
parts of Akron.

Roll Call on a Bush Recess Appointment to Help Decide "Another Bush v. Gore"?

So suggests the spokesperson for a conservative judicial group in this Roll Call article. Paid subscription required.

"All Eyes on Voting Process"

The Tampa Tribune offers this report.

"Road to White House May Run Into Detours"

The San Jose Mercury News offers this report.

"Election Suits are Filed Early and Often"

The Los Angeles Times offers this report.

"Private Political Donations Can Have a Business Price"

The New York Times offers this profile of Jerry Perenchio.

"Passion and Election Disputes on Rise in Florida as Vote Nears"

The New York Times offers this report.

"Voter Registrations Challenged in Ohio"

A.P. offers this report.

"Fla. County to Replace Absentee Ballots"

A.P. offers this report.

Tova Wang's Report on Missouri HAVA Issues

You can find it here.

"What Could Go Wrong, Part I"

CBSNews offers the first part in a 3-part series on potential election day problems.

Two from the Wall Street Journal

Steven Sholk sends along links to If Election Isn't Resolved Nov. 2, Battles Loom in Seven Key States and Getting Out the Vote, With a Cookie, an article on payments for turnout (something illegal in federal elections but increasingly done).

Unlimited contributions for recount funds

Bob Bauer reports here that two requests to the FEC for advisory opinions on fundraising for recount funds have been withdrawn. "The only law on the question is now found in section 100.85 of the Commission regulations. That section allows for candidates to raise unlimited individual and PAC funds to pay the costs of recounts and contests." UPDATE: Trevor Potter and Bob Bauer are hashing this out here (scroll near the bottom). Bob also notes that the correct regulation number is 100.91.

Television appearances

I'll be talking about potential post-election litigation tomorrow morning 10am eastern on Dolans Unscripted, Thursday morning (10 EDT) on CNNfn.

On Friday evening, I'll appear on the new Wall Street Journal's television program on PBS, Journal Report, talking about potential challenges to Colorado's Amendment 36.

On Sunday evening, I'm scheduled to appear on NBC's Dateline at 7 pm EST (clock change) talking about potential post-election litigation.

All appearances are of course subject to last minute cancellations.

Conflicting Ohio Rulings on Challenges

A judge in Cleveland denied a TRO to stop the GOP voter registration challenges there, but a judge in Cincinnati has granted such a TRO, pending a hearing on the preliminary injunction Friday. Dan Tokaji has the details here. According to this press release issued by the judge in Cincinnati, the order applies to a numbrer of counties, including Cuyahoga (the county including Cleveland).
CORRECTION: The Cleveland case involved voters not on the rolls. There is no conflict between the two cases. You can find the Cleveland order here. The Washington Post offers this front page story, suggesting that the ruling could lead to the challenges simply made at the polls on election day, which could add to potential voting delays.

"Rules a Moving Target"

The Rocky Mountain News offers this report about a recently released 83-page election manual in Colorado.

Bush v. Gore Debate

The New York County Lawyers Association Inn of Court presents Bush v. Gore
Was Justice John Paul Stevens correct in identifying the real loser of the case as "the Nation's confidence in the judge as an impartial guardian of the rule of law," or did the Court properly intervene and redress a risk to the full and effective participation in the voting process?

Thursday, October 28, 2004
6:00 p.m.
The Ceremonial Courtroom
Daniel Patrick Moynihan Courthouse
500 Pearl Street

withh speakers
George Terwilliger, III, Esq., former Deputy United States Attorney General (1991-92), partner at White & Case and member of George W. Bush's legal team

Floyd Abrams, Esq., co-counsel to the New York Times in the Pentagon Papers case, partner at Cahill, Gordon & Reindel and Columbia Law School professor

Moderated by Adam Liptak, Esq., National Legal Correspondent of the New York Times

In other election law news...

A federal district court, Eastern District of California, issued a preliminary injunction against the California Fair Political Practices Commission today, in a lawsuit (and PI application) filed by the California Republican Party, the California Democratic Party and the Orange County Republican Party, which enjoins the FPPC from enforcing the advertising disclosure provisions of CA Government Code sections 84503 and 84506 that require “major funding disclosure” of the top two donors to these general purpose committees on the advertising publications themselves. The scanned opinion is too large for me to post.

A federal district court in Missouri has upheld a decision to deny a mentally incapacitated person the right to vote. The opinion is here and AP is here.

A federal court is hearing arguments today on whether the controversial immigration initiative in Arizona, Prop. 200, should be removed from the ballot because of petition problems. See this report.

"Postal Experts Hunt for Missing Ballots in Florida"

Reuters has this report.

Democrats' Complaint Against Ohio Republican Voter Registration Challenges

You can find the complaint here.

"The Electoral College Does It Better"

Benjamin Zycher offers this commentary in the Los Angeles Times.

Long Lines at Polls? Will Voting Hours Be Extended

The Miami Herald reports here of up to three-hour waits for those wishing to cast early votes. With plenty of news reports of polls not being adequately staffed on Election Day, there is reason to worry that there could be litigation to keep polls open longer (something that happened in St. Louis last time and remains mired in controversy last time).

I don't know Florida's law on polling hours, but Ohio's law is like California's: whoever is standing in line at the time the polls close gets to vote, but no one new can join the line (see Ohio Rev. Code section 3501.32(A)). If there are just a few people in line, this is easy to police. But if there are very long lines because of voting glitches or an inadequate number of poll workers, it will be very hard to police. It would not surprise me to see someone go to court to try to keep the polls open later, and this is something I suspect that will be vigorously opposed by some.

The long lines for early voting too make early voting to avoid these problems somewhat problematic.

Two from Wall Street Journal

See Making Expat Votes Count and As a Final Gambit, Parties Are Trying to Damp Turnout. Thanks to Steven Sholk for the links.

"Texas Democratic Lawyers Join in Effort to Protect the Vote"

Law.com offers this report.

"Signs of Voter Fraud Appear"

The Los Angeles Times offers this report.

"Election Boards Face Suit"

See this report in the Columbus Dispatch.

Two from the New York Times

The newspaper offers Expect Bush v. Kerry, the Chadless Sequel and Judge Rules Against 10,000 Floridians Barred from Voting.

The newspaper also offers an editorial, The Three-Hour Poll Tax.

Two From the Washington Post

See Legal Battles Over Ballots Put Election Rules in Flux and Electoral College Calculus: Computer Analysis Shows 33 Ways to End in a Tie.

The paper also offers an editorial on voting rights for felons and Election by Litigation from Robert J. Samuelson.

"New Florida Vote Scandal Feared"

The BBC offers this report.

"Appeals Court Reverses Michigan Ballot Rule"

A.P. offers this report.

"Behind the Looming Ballot Clash"

The Christian Science Monitor offers this report.

Wang on Ohio HAVA Problems

Tova Wang (Century Foundation) has posted Eyes on the Buckeyes, the first in a series of papers on HAVA issues in the battleground states.

Nader Loses in Supreme Court on Ohio Ballot Access

Or so I hear from a reliable source. The ruling is not yet on the Supreme Court's website. UPDATE: AP confirms the report here.

Sixth Circuit Issues Its Opinion in Ohio Provisional Voting Case

You can find the opinion here.

"Changes May Lead Voters to Wrong Polls"

A.P. offers this report.

Judge Dismisses Federal Lawsuit Challenging Colorado's Amendment 36

The A.P. report is here. I haven't seen the opinion yet. Most likely (from the A.P.'s general description) the federal judge abstained, ruling that the state courts should decide this first.

Why would a federal court do so, given that the issues raised are federal constitutional issues? Because the state court could potentially give the initiative a construction under state law that could avoid federal constitutional issues.

Plaintiff Jason Napolitano says he won't appeal. So this case is over, and unless someone sues quickly in state court, we won't have a resolution of this issue before Election Day.

UPDATE: A reader writes that the judge ruled from the bench, and that abstention was the third reason given for dismissal, after standing and ripeness concerns. It is not clear if there will be a written opinion. The reader also notes that there were intervenors who pushed the Article II issue; presumably they could appeal. UPDATE II: The NY Times offers this report.

"Partisan Suspicions Run High in Swing State"

The Los Angeles Times offers this report.

More Briefs in Albuquerque Spending Limits Case

You can find them posted here. Of particular interest is the brief of Sen. Hollings and other Senators supporting spending limits.

"Is E-Voting Secure"

CBSNews has posted this story about an upcoming 60 Minutes II broadcast.

Report from Center for Voting Rights and Protection

You can access "Republican Ballot Security Programs: Vote Protection, Minority Vote Suppression--Or Both" here.

"Election Day Misdeeds"

The New York Times offers this editorial.

"Rehnquist Ill, Making Court Election Topic"

The NY Sun offers this report.

"The Origins of the Electoral College"

Joshua Spivak has this analysis in The Hill.

Olson and Boies on Post-Election Litigation in the New York Times

You can find the opeds here and here.

"The Rule of Lawyers"

The Washington Post offers this editorial.

"Republicans Claim Democrats are Behind Office Attacks"

The New York Times offers this report.

"Despite New Fundraising Rules, Parties Collect a Record $ 1 Billion"

The New York Times offers this report.

"Some Fear Ohio Will Be the Florida of 2004"

The Washington Post offers this report.

"Debacle Redux"

Roll Call offers this editorial (paid subscription required).

"Could the Federal Election Be Postponed?"

The Wall Street Journal offers this report.

NPR All Things Considered Focuses on Election Administration Questions

The stories include The 2004 Election and the Courts (with Nina Totenberg) and Experts Question Security of Voting Machines (with Pam Fessler).

"Another Fine Mess?"

U.S. News and World Report offers this article on the potential for post-election litigation.

"Republicans Make Gains in Voting Disputes"

A.P. offers this report.

"Republicans Threaten Lawsuit Over Voter Registration Issue"

The Des Moines Register offers this report, which begins: "Controversy over Iowa's election laws heated up this morning when Republicans threatened to file a lawsuit and called for Iowa Secretary of State Chet Culver's resignation, just eight days before Election Day. At issue is the requirement that voters registering by mail check a box confirming U.S. citizenship. Republicans allege Culver, a Democrat, is violating state and federal election laws by deciding last week that he'll allow Iowa voters to bypass that requirement."

Lithwick on the Possibility of Post-Election Litigation

In this article on the Chief Justice's illnesss, Slate's Dahlia Lithwick writes:

What would happen if the Supreme Court were asked to intervene again on any of the inevitable and innumerable Election Day lawsuits, any of which might ooze its way up to the high court? Would the Bush v. Gore court collapse into an elderly ball of scratching, biting, hair-pulling 4-4 indecision? Bearing in mind that a 4-4 tie would mean affirming whatever decision came up from below, this adds yet more credence to my argument that the Supreme Court will not take another presidential election case this year; not an equal protection fight, not a statutory interpretation fight; not a hanging chad dispute; and not a battle over provisional ballots. But more on this tomorrow.

For now, we wish the chief justice a speedy and full recovery.

"The Return of Vote-Pairing"

Jamin Raskin offers this commentary on Slate, with the following subhead: "Vote-pairing nearly saved Al Gore in 2000. Could it give Kerry a decisive boost this year?"

"Should Colorado Be Allowed to Split Its Electoral Votes?"

Richard Epstein and Sandy Levinson debate this question at Legal Affairs Debate Club.

More briefs in the Nader Ohio litigation in the U.S. Supreme Court now posted

See here.

Gerken on the Political Thicket

Heather Gerken has written Lost in the Political Thicket in the current issue of Legal Affairs.

"Ohio GOP Drops Registration Challenges"

A.P. offers this report, which begins: "State Republicans withdrew thousands of more than 35,000 challenges to new voter registrations because of errors in their filings apparently caused by a computer glitch." Another snippet: "But the largest single batch of challenges, some 17,000 in Cuyahoga County, is still being processed because there were no errors, said Jane Platten, elections board spokeswoman."

"Judge Dismisses Touch-Screen Voting Suit"

A.P. offers this report from Florida.

Chief Justice Rehnquist has surgery for thyroid cancer

See here.

More on Fraud Allegations

Following up on this post, Alleging Fraud is Easier than Proving Fraud, readers might be interested in Securing the Vote: An Analysis of Election Fraud by Professor Lori Minnite and David Callahan of DEMOs. Here is the executive summary:

Election fraud is a hotly contested topic in public debates about electoral reform. Debates over election fraud are not new. They have been a staple part of discussions about elections and democracy in the United States for more than a century. But in recent years, issues of fraud and voting integrity have increasingly come to the forefront of public policy discussions over the health of America’s democracy.
Since the 2000 election, a historic effort has been underway to strengthen voting
systems across the 50 U.S. states and also to address obstacles to broader electoral participation.However, at both the federal and state level, efforts to move forward a reformagenda have frequently been complicated by heated debates over issues of election fraud and the integrity of voting systems.
In Congress, disagreement over voter identification provisions in federal election
reform legislation resulted in an acrimonious legislative process that delayed passage ofthe Help America Vote Act.
The 2002 election further underscored the salience of the issue in U.S. electoral politics.With control of the U.S. Senate hanging on the outcome of at least eight Senate races too close to call, the integrity of all ballots was viewed as a matter of grave importance.
Allegations of fraudulent registration and balloting, as well as voter intimidation,
were made in a number of states.Opponents of efforts to make voting easier and more accessible often cite the potential for election fraud as a reason to oppose reforms, such as election day registration, aimed at addressing one of the most challenging issues facing our electoral system: low voter turnout.
As federal and state officials consider future reform efforts, as well as the merits of existing reforms, and begin implementing the new Help America Vote Act, there is an acute need for better information and analysis about election fraud issues. Yet to date there have been no major studies of election fraud in the United States. Too often, hearsay and anecdotal stories are put forth as fact during critical policy deliberations. This research report provides a new foundation of information and analysis to inform public discussions about the integrity of America’s electoral system.

"Make-or-Break Balloting"

The Wall Street Journal offers this report, with the following subhead: "Election of '04 May Be Key To Future of Electronic Voting And Principal Player Diebold." Thanks to Steven Sholk for the link.

"Legal Battles Loom Over Voting Rules"

NPR offers this audio report.

"The Choice"

The New Yorker offers this comment. A snippet relevant to election law: "Bush v. Gore was so shoddily reasoned and transparently partisan that the five justices who endorsed the decision declined to put their names on it, while the four dissenters did not bother to conceal their disgust. There are rules for settling electoral disputes of this kind, in federal and state law and in the Constitution itself. By ignoring them—by cutting off the process and installing Bush by fiat—the Court made a mockery not only of popular democracy but also of constitutional republicanism."

"The Electoral College is Good for America"

National Review Online offers this commentary by Gary L. Gregg.

"Portrait of a Country on the Verge of a Nervous Breakdown"

The Independent (U.K.) offers this report.

"Reforms Not Stopping Flow of Campaign Cash"

NPR offers this audio report.

New Paper on SSRN

I have posted The Supreme Court and Election Law: A Reply to Three Commentators on SSRN. Here is the abstract:

The Journal of Legislation and Notre Dame Law School invited three distinguished scholars to comment on my recent book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003), and have kindly given me this chance to reply. After a brief summary of the main points of my book, I focus on what I consider to be the central critical claim of each commentator Professor John Nagle gently suggests that election law itself may not be a coherent field of study, noting that much election law jurisprudence appears to turn on matters of appearance over that of substance. Professor Luis Fuentes-Rohwer agrees with much of my analysis, but argues that I do not go far enough - suggesting that the logical end-point of my argument is for the Supreme Court to extricate itself from the political thicket entirely. Professor Guy-Uriel E. Charles argues that my distinction between core and contested equality rights eliminates any purpose for judicial review and is too difficult to put into practice.

In this Reply, I defend my approach. Professor Nagle is right that the Court often strays from the right path when it decides election law cases on appearances alone, but he fails to recognize how conceiving of election law synthetically informs Court decisionmaking on issues such as the justiciability of partisan gerrymandering claims. Professor Fuentes-Rohwer's general suggestion of Court exit from the political thicket has much to commend it in the abstract, but he fails to evaluate my proposal as a second best approach, particularly compared to the main alternative floating around election law circles today, the structuralist approach that focuses on appropriate political competition. Finally, Professor Charles puts his finger on the most difficult aspect of my book, and I welcome his decision to take my proposed distinction between core and contested equality claims seriously.

"Storm Clouds Gathering Over Legitimacy of Election"

Ron Brownstein offers this Los Angeles Times column.

"Paper Ballot Option an Unofficial Secret"

The Los Angeles Times offers this report.

Alleging Fraud is Easier Than Proving Fraud

In George Will's column that I linked to earlier today, George Will refers to John Fund's book on voter fraud, which has serious allegations that need scholarly investigation. One incident mentioned came out of Kenosha Wisconsin. A blog reader writes me to tell me that as far as that incident goes, Fund mentions only the initial charges, but not that a special prosecutor later found the charges were completely without merit. The Milwaukee Journal-Sentinel article on the investigation is here and confirms the reader's account. It is very hard to prove election fraud, and even harder in most cases to prove that enough fraud exists to change the outcome of federal elections.

"In N.M., Spotlight is on Voting Rights"

The Washington Post offers this report.

"Electronic Voting Raises New Issues"

The Washington Post offers this report.

OSU Litigation Update

See here.

Nader Still Seeking Supreme Court Review to Get on Ohio Ballot

The application for stay and injunction is here.

New Edition of 501(c)(3) election guide

Steven Sholk writes that an updated version of his article, "A Guide
to Election Year Activities of Section 501(c)(3) Organizations," has been
published by Practising Law Institute as part of the course handbook for
the seminar, "Tax Strategies for Corporate Acquisitions, Dispositions,
Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings
2004." You can find it posted here.

"What Congress Should Do"

The New York Times offers this editorial on suggested election administration reforms.

"Bush v. Kerry? Don't Do It Justices"

Garrett Epps has this oped in today's Washington Post.

Michigan Provisional Voting Ruling Stayed By Sixth Circuit

See this A.P. report. Given what this same panel did yesterday with the Ohio appeal (see here), there is little question that wrong precinct votes won't be counted in Michigan either this election. UPDATE: It is noted here that the results in the Michigan case may be different to the extent the lower court ruling depends on state law.

Justice Breyer Comments on Bush v. Gore

See this San Jose Mercury News report. A snippet: ``I had to ask myself would I vote the same way if the names were reversed,'' said Breyer, a Clinton appointee who is considered a moderate liberal on the often divided court. ``I said `yes.' But I'll never know for sure because people are great self-kidders.''

"Judicial Races in Several States Becoming Partisan Battlegrounds"

The New York Times offers this report.

"Democrats Launched Secret Effort on Soft Money"

This report appears on the Pittsburgh Tribune-Review website, with a notation that it came originally from the Washington Post. I do not see it on the Post's website.

"Jones Urges Shelley to 'Step Aside' Before Vote"

The Los Angeles Times offers this report.

"Ex-Convicts Discover Right to Vote"

The Los Angeles Times offers this report.

Nader Loses Pa. Ballot Access Case in Supreme Court

See here.

"Election Integrity at Stake"

George Will offers this column.

"A Margin of Victory? Try instead a Margin of Litigation"

Dick Polman offers this column in the Philadelphia Inquirer.

Iowa Attorney General Says Wrong Precinct Votes Will Count in Federal Elections

Ed Still has the story, and the AG opinion, here.

"What Could Go Wrong this Time"

Time magazine offers this report.

Here is the Sixth Circuit Order; Opinion Has Not Yet Issued

See here. It is possible that Ohio could eventually appeal that aspect of the ruling noting that HAVA creates a right of individuals to sue. This could be important later on down the line.

Howard Bashman has collected more news coverage here.

BREAKING NEWS: Sixth Circuit Reverses Provisional Ballot Ruling Out of Ohio

The A.P. reports here that a Sixth Circuit panel has reversed the district court decision requiring Ohio elections officials to count provisional ballots cast in a precinct other than the precinct at which a voter was registered. The A.P. story indicates as well that the Democrats have decided not to appeal. The Sixth Circuit moved very quickly; it had set Tuesday as a potential date for oral argument if necessary, but it acted before argument issuing its opinion late Saturday. The opinion does not appear to be posted on line, but the A.P. story does not indicate there were any dissents. Two of the judges on the panel were Reagan appointees, and one was a Clinton appointee.

This is an extremely significant event. Of all the potential post-election litigation scenarios, I have pegged provisional voting controversies as the most likely to lead to such litigation, and Ohio provisional balloting litigation at the very top of the list because I expected this contentious litigation to be ongoing through Election Day and beyond. The Democrats made a good choice for the electoral system (though not necessarily for their partisan interests) by deciding not to appeal---sometimes it is more important for the law to be certain than to be right, and this is one of those times.

This does not mean that other circuit courts won't reach contrary decisions or that someone won't eventually try to get the Supreme Court involved. But certainty in Ohio (and likely Michigan, which is also in the 6th Circuit) should help lessen the possibility of post-election problems.

An Election Administrator's Dream Headline

See here.

Butterfly Ballot II?

A.P. offers Layout Confuses Some Absentee Voters, which begins: "CLEVELAND (AP) -- Absentee voters in the most populous county of a critical state in the presidential election are complaining about a ballot layout that they say might prompt some people to choose the wrong candidate, or none at all."
You can see the ballot itself here. It is not hard to see voters voting punch card hole "14" rather than "4" if they wish to cast a vote for President Bush.
If this problem is going to be fixed, it had better be fixed fast, before the election. As we know from the butterfly ballot, after election day it will be too late.

Ohio Sec. of State Runs TV Ads About Voting in the Correct Precinct

Chris Geidner reports here.

"Legal Battles Could Cloud Outcomes in Key States"

The San Francisco Chronicile offers this report.

"A Campaign Finance Law That Works"

Senators McCain and Feingold offer this letter to the editor of the Washington Post.

"Another Tight Race Could End in Court"

The Boston Globe offers this report.

"Prepare for Litigation-Filled Post-Election"

Scripps Howard News Service offers this report.

"Sinclair Airs Anti-Kerry Material"

AP offers this report.

Federal district court rules Box 10 Litigation in Ohio Came Too Late

The document is posted here on the indispensable OSU website, which now has the best collection of 2004 election litigation documents on the Internet. They have also posted the Florida district court decision on provisional ballots here.

Record Early Voting Figures

See this report in the Washington Post.

"No Direct Evidence of Plot to Attack Around Directions"

The Washington Post offers this report.

"Big G.O.P Bid to Challenge Voters at Polls in Key State"

The New York Times offers this front-page report, which begins: "Republican Party officials in Ohio took formal steps yesterday to place thousands of recruits inside polling places on Election Day to challenge the qualifications of voters they suspect are not eligible to cast ballots."

"Justice Department Weighs in on Ohio Ballots"

A.P. offers this report.

"Judge Lifts Block on N.C. Gov. Race Ads"

A.P. offers this report.

Survey of Voters' Preferences for Voting Technology Planned

See this press release from Ball State University.

Vote Buying in West Virginia?

See this BBC report. Link via SW Virginia Law Blog.

"Integrity of Florida Virtual Vote in Doubt"

A.P. offers this report.

"Pa. Links Votes to Student Grant Money"

A.P. offers this report.

"Provisional Voting Case Nears High Court"

A.P. offers this report.

Voter Fraud Stories

See Voters Report Fake Calls from the Columbus Dispatch.

"Republican Group Accused of Voter Fraud"

AP offers this report.

"Key States' Ballot Officials Feel Glare of Critical Eyes"

The Los Angeles Times offers this report.

Fundraising for and against Colorado's Amendment 36

See here.

"State Elections Chief Limits Poll Watchers"

The Denver Post offers this report, which begins: "Colorado Secretary of State Donetta Davidson issued strict guidelines for poll watchers across the state today, limiting each party to one person per station and banning outside groups from sending out teams of lawyers to monitor the closely watched election."
A reader who brought this story to my attention writes: "Why are the parties that are IN the election that only ones that can MONITOR the election? This sounds
ridiculous. Is there any basis in election law for challenging these restrictions?"
Certainly elections officials can set reasonable regulations for conducting elections, including limiting the number of poll watchers. Otherwise, polls could become chaotic. The argument for outside observers, it seems to me, depends upon some possibility of collusion between the poll watchers of the two parties.

"Voters Registering Nov. 2 Seen as Key in Four Swing States"

The Boston Globe offers this report.

Nader Goes to U.S. Supreme Court to Try to Get on Pennsylvania Ballot

Here is the A.P. story. The Court will likely reject this one quickly.
The Sixth Circuit also rejected a Nader attempt to get on the Ohio ballot. He still has a case pending before the Ohio Supreme Court. See here.

"The Media's Shrinking Free Speech Zone"

Ryan Sager offers these thoughts at Tech Central Station.

"Minnesota Supreme Court Ponders Election Day Lineup"

The Duluth News offers this report.

"Ballot Initiatives and the Future of Political Parties"

NPR's Talk of the Nation yesterday discussed the primary initiatives in California and Washington.

"California Scrambles to Prepare for Election"

A.P. offers this report.

District Court in Florida Issues Provisional Voting Ruling Stating that Provisional Votes Cast in "Wrong" Precinct Don't Count

The A.P. story is here. So far, I have not been able to find the opinion on line. If someone sends it to me, I'll post it.
This is a decision under HAVA. A similar claim brought under state law was rejected by the Florida Supreme Court.

"Poll Monitors Brace for Nov. 2"

The Wall Street Journal offers this report, which begins: "Wisconsin Republicans are conducting background checks on roughly 100,000 newly registered voters and training more than 50,000 volunteers to monitor precincts on Election Day and lodge challenges against voters they view as questionable." Thanks to Steven Sholk for the pointer.

"'Provisional' Democracy"

The Wall Street Journal offers this editorial.

"Election disputes may wind up before Supreme Court, expert says"

Knight-Ridder offers this report.

"Florida, Ohio Try to Avoid Vote-Count Fiasco, Revamp Voting Machines"

Bloomberg offers this report.

"Voting and Counting"

Paul Krugman offers this oped.

"Polls Get Extra Security on Threats"

A.P. offers this report.

"A Fading Nader Factor?"

The Washington Post offers this report.

On Foxnews Tonight

I should be on Greta Van Susteren's On the Record talking about potential post-election litigation. The show starts at 10 pm ET, and I should be on some time after 10:30. As always, these appearances are subject to last minute change and cancellation.

"International Observer Team Urges Reforms in US Electoral Process"

Common Dreams offers this report.

Looking for My Views on the Potential for Post-Election Litigation?

I have been getting a large number of inquiries regarding the potential for post-election litigation. I have added a set of links on the right side of the blog to my recent Slate article on the topic, as well as other major posts and commentaries of mine on the topic.

"Proposition 62 Would Squelch Innovation in State's Politics"

Richard Winger wrote this oped in the San Jose Mercury News.

Post-election conference announcement

Post-Election Conference on Voting Issues & Campaign Finance Recap

Wed., November 17th, 9 AM – Noon at the St. Regis Hotel (16th and K), Mount Vernon Room

Co-hosted by the American Enterprise Institute, the Brookings Institution, the Campaign Legal Center and the Reform Institute

Continental breakfast buffet

9 AM: Introduction by Tom Mann, Norman Ornstein and Tony Corrado

9:30 AM: Panel I: Campaign Finance Developments in the 2004 Election

Panelists include: Norman Ornstein, American Enterprise Institute; Tony Corrado, Colby College; and David Magleby, Brigham Young University. Tom Mann of the Brookings Institution to moderate.

10:30 AM: Panel II: Presidential Public Funding and the 2004 Election

Panelists include: Michael Malbin, Campaign Finance Institute; Commissioner Michael Toner, The Federal Election Commission; Mike Petro, The Committee on Economic Development; and Joan Claybrook, Public Citizen. Don Simon, counsel to Democracy 21, to moderate.

11:15 AM: Panel III: The Reform Agenda for the Next Congress

Panelists include: Fred Wertheimer, Democracy 21; Larry Noble, Center for Responsive Politics; Charles Kolb, Committee on Economic Development and Frances Hill, University of Miami School of Law. Trevor Potter of the Campaign Legal Center to moderate.

*All panelists have been invited but not all have confirmed participation. A final agenda will be available closer to the event.

Please contact Shannon Robertson, srobertson@campaignlegalcenter.org, for additional information.

Iowa Attorney General Opinion on Check the Box Question

You can find it here.

Sixth Circuit Schedule for Ohio Provisional Balloting Appeal

You can find the details here. This promises to be a very important case, probably the most important one so far, in the pre-/post-election litigation.

"State Election Funding in Jeopardy"

The Sacramento Bee offers this report, which begins: "California is in danger of losing $169 million in federal money earmarked for new voting machines and other election system upgrades because of concerns arising from Secretary of State Kevin Shelley's previous handling of federal funds." The problems in California have gotten so bad that the Bee has set up this page devoted to Kevin Shelley controversies.

The Borda Count, Arrow's Theorem, and Proposition 62

See this oped in today's Los Angeles Times.

"Tort Reform Group Ordered to Pull Ad"

See This St. Louis Post-Dispatch article, which begins: "In what may be the first test of a new Illinois campaign finance law, a judge has ordered a tort reform group to pull a radio ad about the Illinois Supreme Court race." Thanks to Robbin Stewart for the pointer. He has more on this over at his "soapbox" blog.

Amicus Brief in Rodriguez v. Pataki

I have uploaded this amicus brief sent along by Jeff Wice in the New York redistricting case. He writes: "The brief supports appellants position and asks the Court to note probable jurisdiction. The Federal District Court for NY's Southern District held the opposite of the Georgia District Court in Cox v. Larios on the 10% rule. We are hopeful that the Court will take the case and clarify this standard before the next round of redistricting."

"Parties File Suits Over Election Issues"

A.P. offers this report.

"Kerry Maps Postelection Plan"

A.P. offers this report.

"Attorney General Says Not Checking Box Shouldn't Cancel Vote"

The Sioux City Journal offers this report.

Roll Call is Reporting...

Hill Wades into Voter Suppression, which begins: "Earlier this month, Rep. Elijah Cummings (D-Md.) offered the Voter Protection Act of 2004. But for Cummings, the measure’s slim chance of passage this year is beside the point."

DCCC, NRCC Now Nearly Even in Cash on Hand

Justice Mostly on Track with Voter Access, GAO Reports

HAVA Dispute, which begins: "The Election Assistance Commission reprimanded Ohio Secretary of State Kenneth Blackwell in a letter this week, cautioning the Republican to 'refrain from characterizing' an EAC resolution on the use of provisional ballots as a defense of some controversial actions he has taken. "

Norm Ornstein's commentary, "Want a Scary Scenario for Presidential Chaos? Here Are a Few."

Paid subscription required to access these articles.

"Bush's Side Entered October with $108 Million, Kerry's With $79 Million"

The New York Times offers this report.

"Electoral 'Fixes'" and "Voters' Obligations"

In today's Washington Post, David Broder opines on the electoral college, while George Will writes about punch cards and claims of voter disenfranchisement.

"Charges, Countercharges Exchanged Over Fraudulent Voting"

Don't miss this Washington Post report.

"Courting Confusion"

Charles Fried offers this oped in the New York Times which discusses, among other matters, the Supreme Court's campaign finance jurisprudence.

"The Redistricting Rematch"

The Austin Chronicle offers this report.

District Court Rejects Ohio Secretary of State's Position on Provisional Balloting, Again

The district court's new order is here. Dan Tokaji has the details here.

"Taking Back the Vote"

Phil Kiesling and Sam Reed offer this New York Times oped, which begins: "With voters and the press fixated on the fiercest presidential race in decades, scant attention has been paid to a political revolution erupting on the West Coast - one that Gov. Arnold Schwarzenegger of California gave his support to this week. On Nov. 2, voters in Washington State and California are expected to approve initiatives to abolish the political party primary as we know it. Voters in Oregon may well pass a similar measure by 2006."

Amendment 36 Tanking?

See here.

"Pentagon to Place U.S. Ballot on Internet for Overseas Voters"

The New York Times offers this report.

"Legal Wars Stirring Over Election 2004"

The Christian Science Monitor offers this report.

Felon Voting Cases Listed for Supreme Court conference Nov. 5

The Supreme Court has rescheduled Locke v. Farrakhan for conference
on Nov. 5, along with a New York case on the same issue, Muntaqim v.
Coombe, 04-175. I am predicting a cert. grant in Locke or both cases.

Michigan HAVA decision now available

See here.

Link to my Day to Day Interview

See here.

"Voting on the Electoral College"

The Christian Science Monitor offers this editorial.

"Judge Rejects White House on Counting of Ballots"

A.P. offers this report.

"Election Possibilities Stirring Outrage"

Paul Campos offers these thoughts for Howard News Service.

"Large Donors Fueling Ad Blitz"

The Sacramento Bee offers this report.

"Parties to Post Lawyers at Polls"

The Washington Post offers this news from Virginia.

"Kerry Aims to Avoid Gore Recount Mistakes"

A.P. offers this report.

"Interest Groups Mount Costly Push to Get Out Vote"

The New York Times offers this report.

On Day to Day

I should be on NPR's Day to Day today, talking about my recent Slate piece on potential post-election litigation. Yesterday's program featured Politicizing the Process of Registering Voters.

"Play by the Rules, Colorado"

Joshua Spivak offers this oped in USA Today.

"Judge, Clarifying Decision, Says Spending Rules Stand"

The New York Times offers this report.

"Legal Battle for Presidency Underway"

The Washington Post offers this report.

"GOP Justice Key to Dems' Remap Hopes; Kennedy Could Provide Swing Vote in Texas Redistricting Case"

The Dallas Morning News offers this report.

"Political Scientists in McConnell v. FEC"

The new issue of PS: Political Science & Politics features this mini-symposium. The introduction by Jonathan Krasno is here. The papers are listed here but not on line.

"Texas Races Come Down to Mean vs. Meaner"

The Hill offers this report. I've been debating with some other election law folks the extent to which there is a social consensus against partisan gerrymandering. Relevant to that debate is this snippet from the article: " A recent Dallas Morning News poll found that 39 percent of respondents in the 32nd District thought the new boundaries are 'mostly unfair,' while 36 percent said they are 'mostly fair.'"

"Lawsuits Loom Over New Mexico Outcome; State Republicans Fear Illegal Votes will Taint Election"

The Hill offers this report, which begins: "Unless the presidential election is a blowout, the Land of Enchantment will see lawsuits challenging the outcome, a key Republican state party official predicts." This is the most unequivocal commitment to post-election litigation that I have seen so far. Let's hope the electoral college vote has more than a 5-vote spread.

Gerrymandered Polling Places in Pennsylvania?

See this report in the Philadelphia Daily News.

"Cowboys Gear Won't Fly at Polls"

The Dallas Morning News offers this report. Thanks to a reader for passing this along. The reader wonders how this can be constitutional under the First Amendment. In Burson v. Freeman, the Supreme Court upheld a ban on electioneering activities within 100 feet of the polling place. The case was one of those unusual cases where the Court applied strict scrutiny (because of the First Amendment in this case) and the government still won.

"Judge Won't Stay Campaign Finance Ruling"

A.P. offers this report. The Court's order is here. A snippet:

Upon a careful consideration of these filings and the relevant legal authority, the Court declines to stamp the Commission’s “business-as-usual” tactics and request for delay with the judicial imprimatur of approval. Rather, the Court concludes that the FEC has failed to meet the stringent standards required to justify the extraordinary remedy of a stay pending appeal and therefore shall deny the Commission’s motion. Importantly, while the Court has determined that it lacks jurisdiction to go beyond identifying the FEC’s errors of law in the defective regulations, Shays, Civ. No. 02-1984, slip op. at 156 (D.D.C. Sept. 18, 2004), and notes that the deficient rules technically remain “on the books,” the Commission should conduct proceedings consistent with the Court’s opinion and remand in order to assuage its abrogation of both congressional intent and the public interest.

The point about the rules remaining on the books is quite important, as there has been some debate about what rules operate until the new FEC lawmaking.

You need a scorecard to keep up with all this litigation

Fortunately, Election Law at Moritz has created this one.

Nader Still Off the Ballot in Pa.

See this A.P. report.

Provisional Ballots Meet Amendment 36

The double nightmare scenario.

Michigan HAVA Voting Case

A federal district court in Michigan has ruled that votes cast in the wrong precinct by voters will need to be counted. It also upheld Michigan's voter identification requirements. Unfortunately, the scanned pdf file is too large for me to post. Dan Tokaji has more details here.

"Justice Dept. Intervenes in Vote Dispute"

The Washington Post offers this report.

Electionline.org to Issue Big Report Today

Here is the media advisory. The report should be available later today here.

Bauer on the "Curious Request" to FEC on Recount Rules

Those of you who follow the FEC should not miss this post.

"Fix Plan B"

Roll Call offers this editorial, which begins:

Amid all the debate over the numerous shortcomings in the nation’s electoral system — the flawed voting machines, the continuing influence of big money, the allegations of voter fraud — too little attention has been spent on a looming constitutional problem: the “contingent election.”

Under the Constitution, a presidential election in which no candidate receives a majority of the Electoral College vote is thrown into the House of Representatives. There, each of the newly elected state delegations casts a single vote for president, with a 26-state majority required to win. At the same time, a majority of the Senate chooses the vice president.

Even without getting into the system’s more bizarre permutations — delays that could force the Speaker or the President Pro Tem to be named acting president, or a partisan walkout that deprives the majority of a quorum to act — the current design is rife with problems that could become reality this year.

"Support Wanes for Colo. Initiative to Split Electors"

The Hill offers this report.

There are HAVA-related issues in Iowa, too

See here, here, and here.

"New Jersey Lawsuit Challenges Electronic Voting"

The New York Times offers this report. Thanks to Doug Greene for the pointer.

Texas Re-redistricting roundup

See reports in The New York Times; The Wall Street Journal; The Washington Post; Los Angeles Times.

Howard Bashman has collected links to more stories, including many from Texas newspapers, here.

"Governor Endorses Open Primary Measure"

The Los Angeles Times offers this report.

Law and Democracy: A Symposium on the Law Governing our Democratic Process

The George Washington Law Review invites you to attend:

Law and Democracy: A Symposium on the Law Governing our Democratic Process

Date: Monday, November 15, 2004

Location: The Library of Congress, First Street and Independence Avenue, S.E., Washington, D.C.

Just two weeks after the 2004 elections, the country’s leading election law and political science scholars will gather for a frank and insightful discussion on the state and development of the law governing our democratic process. The George Washington Law Review invites you to join us for what promises to be an exciting and memorable day.

For more information, or to register for the symposium, please contact James Cobb, the Senior Projects Editor of The George Washington Law Review, at jcobb05@law.gwu.edu.

Schedule of Events (subject to change):

8:15 a.m. Welcoming Address
Roger Trangsrud, Interim Dean, The George Washington University Law School
Spencer Overton, The George Washington University Law School
Location: Jefferson Building, The Library of Congress

8:30 a.m. Panel I: Partisan Redistricting and Veith v. Jubelirer
Michael Kang, Emory University School of Law
Ellen Katz, University of Michigan Law School
Justin Driver, Charles Hamilton Houston Fellow, Harvard Law School
Adam Cox, The University of Chicago Law School
Location: Jefferson Building, The Library of Congress

10:30 a.m. Panel II: Campaign Finance
Dennis Thompson, Kennedy School of Government, Harvard University
Richard Briffault, Columbia Law School
Guy Uriel Charles, University of Minnesota Law School
Gregg Polsky, University of Minnesota Law School
Larry Noble, Executive Director, The Center for Responsive Politics, and former General Counsel of the Federal Election Commission
Lillian BeVier, University of Virginia School of Law

Location: Jefferson Building, The Library of Congress

12:30 p.m. Luncheon and Roundtable Discussion: How the Rules Shaped the 2004 Election
Nina Totenberg, National Public Radio
Bill Marshall, The University of North Carolina School of Law
Rick Hasen, Loyola Law School, Los Angeles
Samuel Issacharoff, Columbia Law School
Edward Foley, Moritz College of Law, The Ohio State University
Location: Madison Building, The Library of Congress

3:00 p.m. Panel III: Voting Rights and Barriers to Voting
Heather Gerken, Harvard Law School
Daniel Tokaji, Moritz College of Law, The Ohio State University
Daniel Ortiz, University of Virginia School of Law
Grant Hayden, Hoftstra University School of Law
Terry Smith, Fordham University School of Law
Location: Jefferson Building, The Library of Congress

Symposium: Electoral Districting and the Supreme Court

The Cornell Journal of Law and Public Policy is putting together the following symposium:

Date: Saturday, October 23, 2004

Place: Room G85, Myron Taylor Hall, Cornell Law School

Agenda:

10:00 a.m. Looking on the Bright Side of Partisan Gerrymandering

11:30 a.m. Vieth v. Jubelirer

1:00 p.m. Keynote Address (Berger Atrium):

Contested Politics/Uncontested Elections,

Samuel Issacharoff, Harold R. Medina Professor in Procedural Jurisprudence, Columbia Law School

2:30 p.m. Redistricting, Review, and Retrenchment

Participants:

Kathryn Abrams, Herma Hill Kay Distinguished Professor of Law, Boalt Hall, University of California, Berkeley, School of Law

Richard Briffault, Joseph P. Chamberlain Professor of Legislation, Columbia Law School

Guy-Uriel Charles, Visiting Associate Professor of Law, University of Minnesota

Heather K. Gerken, Assistant Professor of Law, Harvard Law School

Michael Kang, Emory School of Law

Daniel Hays Lowenstein, Professor of Law, University of California, Los Angeles, School of Law

Trevor W. Morrison, Assistant Professor of Law, Cornell Law School

For further information, contact Molly Banzuly , Symposium Editor, emb27@cornell.edu.

"Republicans Assail Lawyer's Election Work for State"

A.P. offers this report.

Glassman on Electoral College Tie

John McCain as spoiler? See here.

"We May HAVA Problem"

See John Fund's column in the Wall Street Journal.

Florida and Colorado Provisional Balloting Decisions

You can find the Florida decision here and the Colorado decision here.

Others' Thoughts on the Texas Decision

Lyle Dennison is here.
Beldarblog is here.

"Florida 2000: The Sequel; Five Ways the Election Could End Up in Court, Again"

I have written this Jurisprudence analysis on Slate. I'll also be speaking on Public Radio International's To The Point today about "counting votes."

Another Ohio Lawsuit

Dan Tokaji has the details here. A snippet: "The Lucas County Democratic Party and Ohio Democratic Party have filed a new federal lawsuit, challenging Secretary of State Ken Blackwell's memorandum requiring the rejection of certain voter registration forms. The case surrounds Blackwell's order that counties not accept registration forms delivered in person, unless "Box 10" is filled in. Box 10 requires voters to fill in either the last four digits of their SSN, or their Drivers' License number." I have posted the complaint here.

"Fla. Court Rules on Provisional Ballots"

A.P. offers this report.

"Problems Crop Up in Early Fla. Voting"

A.P. offers this report.

"Kevin Shelley's Mess"

The Los Angeles Times offers this editorial.

"Allegations of Electoral Crimes"

The New York Times offers this editorial.

"FEC To Rule on Soft Money for Recounts"

A.P. offers this report.

Breaking News: Supreme Court Remands Texas Re-Redistricting Case in Light of Vieth

A.P. offers this early report. The Texas case was remanded to the three judge court to reconsider in light of the Supreme Court's partisan gerrymandering decision in April, Vieth v. Jubelirer.

I had predicted that the Court would summarily affirm the Texas case (unless the Court saw a Voting Rights Act problem), with dissents from the dissenters in Vieth. I based this prediction on the fact that four of the Justices in the plurality indicated in Vieth that partisan gerrymandering claims should be considered non-justiciable, and they pointed to the Texas re-redistricting in their opinion. Justice Kennedy was fully aware of the Texas re-redistricting case when he concurred, agreeing with the four dissenters that these cases were justiciable, but agreeing with the plurality that no one has yet found a way to separate out permissible from impermissible consideration of party identification of voters in redistricting.

This decision today is a punt by the Supreme Court, perhaps a prudential move in light of the upcoming presidential election. Most likely it reflects Justice Kennedy's continued internal conflict on the question of how to resolve these cases. What is the lower court to do? The lower court Justices already pleaded with the Justices the first time around to come up with a workable partisan gerrymandering standard. Vieth has given them nothing really to work with. It will be up to plaintiffs to come up with a new standard on remand to meet Justice Kennedy's standards. In my forthcoming Election Law Journal article, "Looking for Standards (in All the Wrong Places): Partisan Gerrymandering Claims After Vieth," I argue that Vieth should be viewed as a placeholder decision. Likely the status quo (claims are justiciable, but no standard to use to judge partisan gerrymandering claims) will continue until we have a change in Court personnel, or until Justice Kennedy decides to finally commit in one direction or another.

In the meantime, the Texas races go forward under the re-redistricted lines. The New York Times today discusses those races, and at the very least, the lower court will have the benefit of this election to see precisely what the effect of the re-redisticting has been.

"After Late Start, Republican Groups Jump into Lead"

The Washington Post offers this report, with the following subhead: "Since August, 527s Raised Six Times as Much as Democrats."

"Risks Seen for TV Chain Showing Film About Kerry"

The New York Times offers this report. The company is Sinclair, but the risks are not of campaign finance violations.

"As Election Nears, Parties Begin Another Round of Legal Battles"

The New York Times offers this front-page report.

Election law lecture

"EVERYTHING ABOUT VOTING AND THE ELECTORAL COLLEGE YOU WISH YOU DIDN'T HAVE TO ASK"*
*BUT NEED TO KNOW BEFORE NOVEMBER 2nd!!



A FREE PUBLIC LECTURE AND DISCUSSION
with

JERRY GOLDFEDER
Professor, "Election Law and the Presidency"
Fordham Law School


MONDAY, OCTOBER 25, 2004, 7 PM
AT CONGREGATION B'NAI JESHURUN
257 W. 88th Street (betw. Broadway and West End Ave.)
Manhattan

"This Office Should Be Spotless; Scandal Has Tarnished Secretary of State"

Tony Quinn offers this commentary in the Los Angeles Times.

Washington Post Reports on Vanity Fair's Bush v. Gore article

See here.

Conflict Between Instant Runoff Voting and Campaign Finance Law?

See this New York Times report.

"Legal Eagles Will Eye Voting; 'Armies of Voters' Tapped"

The Denver Post offers this report.

"Election to Be Scrutinized for Irregularities"

The Los Angeles Times offers this front-page report.

Still More Ohio Litigation

Ned Foley has the details here on how Ohio will enforce an identification requirement under HAVA.

"Our Electors, Ourselves"

Christopher Caldwell offers this opinion piece on the electoral college in the NY Times Magazine. Thanks to Doug Greene for the pointer.

Update on Michigan Provisional Ballot Litigation

See here. Thanks to Fred Huette for the pointer.

"Super Rich Step Into Political Vacuum; McCain-Feingold Paved Way for 527s"

The Washington Post offers this extensive and fascinating report. Thanks to Steven Sholk for the pointer.

Election Law Conference Announcement

"ELECTION LAW, VOTING RIGHTS, AND THE 2004 ELECTION"

Friday, October 22, 2004 at the University of Miami
1:00 PM TO 6:00 PM

CLE credit available (5.5 hours).

SCHEDULE

1:15-2:45 p.m. "VOTER (DIS)ENFRANCHISEMENT: ISSUES FOR THE 2004 ELECTION"
Doug Chapin, Director, electionline.org; Deborah Goldberg, Director, Brennan Center for Democracy; Janai Nelson, NAACP LDF; Tova Wang, Senior Program
Officer and Democracy Fellow, The Century Foundation.

3:00-4:30 p.m. "COUNTING EVERY VOTE: VOTING TECHNOLOGY AND THE LAW"
Kim Brace, Director, Election Data Services; David Kimball, Professor of Political Science, University of Missouri; Martha Mahoney, University of Miami Law School; Daniel Tokaji, Ohio State University's Moritz College of Law.

4:45-6:00 p.m. "FLORIDA ELECTION LAW: AVOIDING THE GHOSTS OF 2000"
Mitchell Berger, Berger Singerman and counsel in the 2000 recount litigation; Eric
Buermann, General Counsel to the Miami-Dade Republican Party, and former General Counsel to Bush-Cheney in 2000; Ion Sancho, Leon County Supervisor of Elections;Lida Rodriguez-Tassef, Miami-Dade Election Reform Coalition; Courtenay Strickland, Voting Rights Project, ACLU of Florida

Panels moderated by U.S. Circuit Judge Rosemary Barkett and U.S. District Judge Adalberto Jordan.

Cocktail reception with panelists will follow.

Location: Storer Auditorium, McLamore Executive Education Center
School of Business Administration, University of Miami
5250 University Drive, Coral Gables, Florida 33146
(Parking available on campus for $5 at Stanford Drive kiosk)

Sponsored by: Hogan & Hartson LLP, White & Case LLC, Podhurst Orseck, P.A.,
Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A., Devine Goodman
Pallot & Wells, P.A.

RSVP to SouthFlorida@ACSLaw.org. This event is free and open to the public.

"GOP Sues for Election Judge Data"

The St. Paul Pioneer Press offers this report, which begins: "The Minnesota Republican Party on Friday asked the state Supreme Court to force local election officials across the state to identify the party affiliation of their election judges."

"Imagining the Danger of 2000 Redux"

Tomorrow's NY Times Week in Review will feature this report.

"'527' Groups Still at Work Raising Millions for Ads"

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

"Kerry Team Demands Equal Time"

See this Washington Post report, the latest in the Sinclair controversy.

"Bush Lawyer Anticipates Delay in Tally"

The Washington Post offers this report.

Who is Jason Napolitano, and Why is He Challenging Colorado's Amendment 36?

See here.

Florida issues New Rule on Touch screen voting manual recounts

See here.

"Have Scary Election Scenarios Increased?"

A.P. offers this report, which mentions a forthcoming article on elections and terrorism by John Fortier and Norm Ornstein in the Election Law Journal.

Seventh Circuit: No Constitutional Right to An Absentee Ballot

See here, another very interesting election law opinion by Judge Posner.

More on Amendment 36 litigation

The Denver Post offers this report, which indicates that the case has been assigned to Federal district court judge Lewis Babcock, who set a briefing schedule for some initial papers and set a hearing for October 26.

I have posted plaintiff's memorandum of law, complaint, and preliminary injunction motion. The case is Napolitano v. Davidson.

Colorado has some other election law troubles. See here.

More on Extra Ballots in Milwaukee

A.P. offers this report. Ned Foley weighs in here.

Primary Backlash Fuels Drive for I-872"

The Seattle Times offers this report, which begins: "Sponsors of Initiative 872, which would transform the state's primary into a "top-two" contest, couldn't have paid for all the publicity they got last month when the state held what may have been its last party primary."

"Election Officials Fight for Net Political Ads"

CNET News offers this report.

"Block the Vote"

Paul Krugman offers this New York Times column.

"Nader Emerging as the Threat Democrats Feared"

The New York Times offers this report, which sees Nader as a threat to Kerry in Colorado, Florida, Iowa, Maine, Minnesota, Nevada, New Hampshire, New Mexico and Wisconsin.

My Final Post in the Campaign Finance Debate with Bob Bauer is Now Up

See here. I hope that Bob and I have moved the ball forward a bit on what is at stake and where the disagreements are.

"Voting Rights Machinery Doubted, Report Says"

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

"A Comparison of the Missouri and Ohio Provisional Voting Decisions"

Ned Foley offers this analysis, which differs somewhat from Sam Hirsch's analysis. See also this New York Times report.

Chances of Colorado Amendment 36's Passage Dimmer

The Wall Street Journal reports that Democratic senatorial candidate Salazar has come out against Amendment 36.

Preliminary Injunction Granted in Ohio HAVA Provisional Voting Case

This is big news, because Ohio is the mother of all battleground states, and the rules for what happens when a voter, especially a new voter, wants to cast a provisional ballot could affect the outcome in Ohio, and therefore the nation.

The Ohio Secretary of State has been ordered by the district court to send a new directive to the counties that would make it much easier for voters to cast a provisional ballot that will ultimately be counted for president. The decision is here. More analysis here.

RNC Against Rock the Vote?

See here.

More on Legal Issues Surrounding Colorado's Amendment 36

Following up on Mark Scarberry's comments, Bryan Wildenthal agrees:

I think Mark's conclusion is persuasive.

I (unlike Mark) personally have no doubt that a state's voters could (with
proper timing) act as the "Legislature" to change how a state's electors are
chosen. I.e., I disagree with the Article II theory set forth in Bush v Gore
by Rehnquist, Scalia, and Thomas, which (as I recall from the Dec. 2000
discussions on ConLawProf, and as I gather from Mark's present posting) Mark
supports (or at least leans toward).

I also tend to think a state's voters could, in theory (at least as far as
the US Constitution and federal law are concerned) make a change in the
state's method of elector selection contemporaneously and simultaneously
with the voters' choice of presidential slate -- i.e., both decisions could
be resolved together on Nov. 2 without being improperly retroactive or
"un-chusing" the state's electors. For example, this might work if the
Colorado initiative, by its own terms, became effective immediately on Nov.
2, if it wins a majority.

But I agree, based on what Mark has presented, that the Colorado initiative
simply will not do that. By the time it would take effect, apparently on
Nov. 3, the electors will already have been chosen (on Nov. 2, as federal
law requires) under the pre-existing method set by Colorado law. That cannot
be undone later, neither a day later, nor (as the Florida Legislature
brazenly and improperly came close to doing in Dec. 2000 by purporting to
appoint electors itself) several weeks later, nor ever. (I think I recall
Mark and others arguing that Florida voters may have failed to make a choice
in Nov. 2000, thus allowing what I view as the Florida Leg's attempt at a
post hoc hijack, but I guess we don't need to rehash all that again.)

Anyway, I kind of like the fact that Mark (who I assume supports President
Bush) and I (a declared Kerry partisan) agree that (apparently) Colorado
cannot change from the winner-take-all system in time to affect this
election. Because we now stand ex ante the election, we have no way of
knowing whether this stance will be crucially favorable to the political
fortunes of either Bush or Kerry (possibly neither). I personally am glad
winner-take-all should (apparently) apply this year regardless of the vote
on the Colorado referendum, because I hold out hope that Kerry will win a
majority in Colorado, and thus all 9 electoral votes. I am willing to take
the risk that Bush might win them all.

How about other con law profs similarly taking a stand ex ante, before
knowing which position will benefit the academic's preferred political
choice?

Bryan Wildenthal
Thomas Jefferson School of Law

But others are not so sure. Richard Winger notes here that this reading might be inconsistent with the Florida legislature's (aborted) attempt to choose a different slate of electors during 2000. And Dan Lowenstein notes here that it is "plausible to say that the 'choice' occurs on the day that the voters vote, and not on the effective date. After all, the choice of electors at the November 2 election is not certified until days or weeks after. That does not prevent us from saying the choice was made on November 2. So the choice how to allocate the electors to the candidates is in the same sense made when the voters vote, regardless of when the initiative becomes effective."

Dan also makes a point I've been making for a while: 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.

Apparently a suit was just filed in federal court (see here, but I don't have any details). My theory on why no suit has been filed before is as follows: Republicans are more likely than Democrats to be hurt by the Amendment, because Bush is more likely than Kerry to win in Colorado. A pre-election suit is most likely to be taken in state court rather than federal court (because of Article III case or controversy requirements in federal court), but the state Supreme Court recently sided with Democrats, rather than Republicans, on the important question of the permissibility of Colorado's re-redistricting. Republicans would prefer to litigate in federal court, especially because the Tenth Circuit is viewed as more conservative than the Colorado Supreme Court. If the Tenth Circuit, for example, held that Amendment 36 violates Article II of the U.S. Constititution, the Supreme Court would likely not get involved. But if the Colorado Supreme Court held there was no Article II violation, the Supreme Court would be put in the position of potentially deciding the outcome of two presidential elections in a row.

"GOP Group Accused of Illegal Ads"

See this news from North Carolina.

"E-Voting Machine Crash Deepens Concerns"

A.P. offers this report.

"What Poll and Registration Numbers Don't Reveal"

Terry Neal offers this very interesting column at Washingtonpost.com.

"Registering Voters: Add One, Take Two Away"

The Washington Post offers this report on alleged destruction of voter registration cards in Nevada first blogged about yesterday.

"In '04 Florida, Lawsuits Begin Before Election"

The New York Times offers this report.

My Thursday Installment in the Bauer-Hasen campaign finance debate is now posted

See here.

"Court Throws Nader Off Pa. Ballot"

A.P. offers this report.

A New Line of Attack on Colorado's Amendment 36

I have already written about the serious risk that Colorado's Amendment 36---which would change the allocation of Colorado's 9 electoral college votes from winner-take-all to a proportional allocation---could be held by the U.S. Supreme Court to run afoul of Article II of the Constitution because the change is being made by the people, not by the state legislature. In my Los Angeles Times oped on the topic (now available here), I indicated I was less convinced that a challenge to the retroactive nature of the amendment would be successful. I conceived of such a challenge as raising due process concerns. But Professor Mark Scarberry of Pepperdine has raised another concern in a post to a constitutional law listserv (reprinted here by permission). Scarberry writes:

Of course there has been discussion of whether Colorado's voters may act as the state's "Legislature" under U.S. Const. Art. II, sec. 1, cl. 2. Only if so may the voters change by initiative the manner of selection of presidential electors. I think it is doubtful (at least) whether they may do so. But the question whether the initiative may be applied to the 2004 choice of electors does not seem to me to be a close question at all.

The initiative would add a new section 13 to Article VII of the Colorado Constitution. Section 13 would provide for proportional division of presidential electors. The initiative states explicitly that "This section [i.e., section 13] shall be effective on and after November 3, 2004." See numbered paragraph (9) of the initiative, the text of which may be found at http://www.lawanddemocracy.org/amend36.html. (One of my students, who happens to be the proprietor of http://politics.blogs.com, surprised me by telling me that the initiative had an explicit Nov. 3 effective date, and the text bears him out.)

The initiative does provide that it is intended to have retroactive effect so as to apply to the election held on November 2. But I believe it cannot have that effect. Article II, sec. 1, cl. 4 provides that "The Congress may determine the Time of chusing the Electors ... ." Congress has done so in 3 U.S.C. section 1:

"The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President."

Thus Colorado must "chuse" its electors on November 2. Colorado will do so by vote of its people on November 2. The choice will be made under the existing "winner take all" approach, which will still be in effect on that date even if the initiative passes. The state could only choose electors after November 2 if there was a failure to choose them on November 2 (see 3 U.S.C. section 2) or if an elector position becomes vacant (see 3 U.S.C. section 4).

By its terms, the new section 13 added by the initiative (if it passes) would not go into effect until November 3. The only way it could be given effect for this election would be for it to have the effect of "un-chusing" the electors that were chosen on November 2 and replacing them after that date with new electors. The federal statute, enacted pursuant to Art. II, sec. 1, cl. 4, does not permit that.

Perhaps there is a feature of the Colorado Constitution providing that initiative measures cannot go into effect until the day after an election. Otherwise I don't understand why the initiative drafters would have drafted it with a November 3 effective date. But in any event, that is the effective date, and I do not see how it can be given retroactive effect without violating federal law.

Am I missing something?

Mark S. Scarberry
Pepperdine University School of Law

I don't have time to look into this myself now, but I would like to hear from other election law scholars with their reactions, which I will post on the blog. By the way, Mickey Kaus links to this poll showing the initiative trailing in the polls. It might be, as Kaus suggests, that if Democrats think Kerry can win Colorado, they are likely to abandon the initiative. That's reason enough, by the way, that this initiative never should have been put on a presidential ballot to apply immediately, where its merits are inextricably bound with the partisan consequences in the short term.

"Nev. Move to Purge Some Dem. Voters Fails"

A.P. offers this report.

"Volusia Agrees to Open Early Voting Sites"

A.P. offers this report, which begins: "Volusia County said Tuesday that it will expand the number of early voting sites, less than a week after a lawsuit alleged the county would disenfranchise blacks by offering only one site - in an area where few minorities live." The NAACP's press release is here.

"Milwaukee Extra Ballot Request Rejected"

A.P. offers this report.

Some comments on the Missouri provisional voting case

Following up on my post yesterday, attorney Sam Hirsch sent the following comments to the election law list, which I am reposting here with his permission:

Although Rick focused on the equal-protection discussion at the end of the Missouri court's opinion on provisional voting, what struck me was the narrowness of the court's ruling on the HAVA issues. As Rick notes, the HAVA provisional-voting requirements are currently being litigated in several states.

First, the Missouri plaintiffs forced the state and local defendants to capitulate and count the votes of the individual plaintiffs and all other similarly situated persons. Apparently, in the wake of plaintiffs' filing their complaint, the Kansas City election authority decided to count every provisional ballot cast by an eligible voter in Kansas City in the August 2004 primary election, regardless of whether the provisional ballot was cast in the "correct" polling place or the "incorrect" one. Until the defendants agreed to count all of these votes, and to include them in the final certified election returns, the court did not lift the temporary restraining order that it had imposed on the defendants shortly after the case commenced.

Second, in the future, all Missouri election officials will have to count all provisional ballots cast at the "incorrect" polling place unless they have evidence that the voter was expressly directed to his or her "correct" polling place and refused to go there (or to a central polling place).

Third, because the court viewed the individual plaintiffs' claims against Missouri's provisional-ballot-counting rules as moot (because their votes had indeed been counted after the plaintiffs filed their complaint), it dealt only with plaintiffs' secondary and tertiary claims involving (a) whether voters can be directed to another polling place (without first being given the option of voting provisionally at the initial polling place), and (b) whether the affirmation signed by provisional voters should declare eligibility to vote at a specific polling place. Only those claims were clearly rejected in the court's order, since the plaintiffs' central claim was deemed to be moot.

Fourth, and most important, the court made it clear that a blanket rule stating that "[p]rovisional ballots voted in the wrong polling place [i.e., any polling place other than the one assigned to the voter's residence] shall not be counted" would be "troublesome" and "illogical" and likely in "direct conflict with the federal statute [HAVA]." That point could be quite significant in the other states that are now involved in litigation over such blanket legal rules.

My Wednesday Post in the Debate with Bob Bauer at Legal Affairs is Now Up

See here.

"Test of Fla. E-Voting Machines Postponed"

A.P. offers this report, which begins: "A public test of Palm Beach County's electronic voting machines was postponed because a computer server crashed."

"FEC May Regulate Web Activity"

A.P. offers this report.

"Pushing to Be Counted in Fla.; Groups Say that Blacks May Not Be Heard at Polls"

Don't miss this Washington Post report.

Los Angeles Times Endorses Open Primary Initiative

The Times has endorsed Proposition 62 and come out in opposition to Proposition 60. The newspaper also endorses the idea of an initiative to end partisan districting in California. Proposition 62 has also been endorsed by the Sacramento Bee and San Jose Mercury News (See here for a listing of other newspapers endorsing 62. You can find anti-62 endorsements here.) Disclosure: I am a legal consultant for the proponents of Prop. 62.

Pa. election law issuse

The New York Times offers One Vote, But Five Ways to Cast It and Pa. To Give Overseas Voters More Time.

Bois and Olson on NPR's Fresh Air

You can find the links here. Thanks to Alec Ewald for the pointer.

"Voter Registrations Possibly Trashed"

See this report from Nevada. Link via Josh Marshall.

"Sinclair and Double Standards"

The Wall Street Journal offers this editorial. Thanks to Steven Sholk for the pointer.

Voter fraud in Colorado?

See here.

District Court Ruling on Missouri Provisional Polling Rules

I have posted the opinion in Hawkins v. Blunt here. Key language from the opinion (which uses Bush v. Gore as precedent, by the way) is the following: "Plaintiffs’ equal protection rights are not violated by the simple requirement that before a voter will be allowed to cast a viable provisional
ballot, the voter, provided the election official is able to determine the voter’s correct polling place, will first be directed to his proper polling place. Plaintiffs’ equal protection claim does not survive."

More cases raising this important issue are on the way in a number of jurisdictions. The best way to get up to speed on this important issue is by reading Dan Tokaji's analysis here and Ned Foley's analysis of the legislative history on this issue here.

UPDATE: Dan Tokaji notes the status of the other pending provisional ballot litigation here.

"The Reform Reporter" Notes Albuquerque Spending Limits Case Before the Supreme Court

Those in the campaign finance reform community interested in the question of overturning Buckley to allow for greater regulation should check out The Reform Reporter put out by a pro-reform group, "The Rest of Us."

The Reporter's top story is on Homans v. City of Albuquerque. A federal district court had upheld the city's spending limits law, but the Tenth Circuit reversed that determination. You can find the city's cert petition on the website of the National Voting Rights Institute (co-counsel for the city) here.

I predict that the Supreme Court won't grant the petition, but it is fairly likely grant a petition in Landell v. Sorrell, 382 F.3d 91 (2d Cir. 2004) if that case is not taken en banc by the Second Circuit. There is a procedural hurdle in Sorrell, because the case is remanded to the district court, but it essentially holds that Buckley allows for spending limits in appropriate circumstances.

Two New Books on the Initiative Process

Check out John Matsusaka, For the Many or the Few: The Initiative, Public Policy, and American Democracy (U. Chicago Press 2004) and Daniel A Smith and Caroline J. Tolbert, Educated by Initiative: The Effects of Direct Democracy on Citizens and Political Organizations in the American States (U. Mich. Press 2004).

"Voters to See Few Big Changes After Florida"

A.P. offers this report.

"Meet Delegate Tim Timken, Election Reform Case Study"

The New York Observer ran this report on September 6, but I just came across it recently. It is worth reading.

"Vote! Why Your Ballot is Not as Meaningless as You Think"

Slate offers this analysis.

No Ruling in Texas Redistricting or Felon Disenfranchisement Cases Today

Although the Supreme Court's order list is not yet posted, reliable sources tell me that the Court's orders today do not address the pending Texas re-redistricting case or the Ninth Circuit's felon disenfranchisement case.

"Experts Examine False Campaign Speech"

See this report on the OSU forum on this issue. Chris Geidner comments on the forum here.

"Swing State Swarm"

Legal Times offers this report on lawyers lining up for potential post-election challenges.

More on Sinclair Broadcasting and Election Law

Yesterday I posted these comments, and I have received a number of angry e-mails from Democratic supporters. I can understand why the supporters are angry---it is indeed highly unusual for a broadcast station to air what is essentially a commentary against one candidate. But that doesn't make it illegal. Federal election law grants an exemption for the media to broadcast bona fide news stories and commentaries, so long as the station is not controlled or owned by a political party or candidate (this provision got Steve Forbes in trouble back in 1996, when his commentaries ran in Forbes magazine while he was running for president).

It also appears that the provisions don't violate federal communications law provisions guaranteeing equal time. See this Los Angeles Times report.

Now, one can argue that being unfair and unbalanced violates the public interest provisions of federal communications law. That may work as a long-run strategy, but it won't keep the documentary off the air. Nor should it. If a liberal-owned television station wished to broadcast Fahrenheit 9/11 in the next few weeks, should that be illegal?

According to press reports, the DNC is planning to file a complaint with the FEC alleging that showing the ad is an illegal in-kind contribution. The media exemption I discussed earlier applies to an independent action; it does not exempt contributions. So if the Democrats could show Sinclair coordination with the Bush campaign or the RNC, there could be a basis for a complaint. But so far I have seen no evidence of coordination.

So what are disaffected Democrats to do? Josh Marshall suggests a shareholder derivative suit or a boycott of Sinclair's advertisers. But running to the FEC or FCC is unlikely to affect policy.
UPDATE: Don't miss Bob Bauer's comments in which he tries to thread a very thin needle.

"Safe Seats in House Keep True Races Rare"

This L.A. Times article chronicles the effects of California's bipartisan gerrymander on the lack of competitive house elections.

Would Democrats Act Irrationally in supporting Colorado's Amendment 36?

See Mickey Kaus here.

My Tuesday Entry in the Debate with Bob Bauer is Now Posted

See here. It includes some interesting figures on post-BRCA fundraising that I learned from David Magleby's excellent presentation at the USC conference on Election 2004 held on Friday.

"Hold On to Your Hat if Amend. 36 Passes"

See this Denver Post report.

"Standby ballots already disputed"

USA Today offers this report.

"Has Campaign Finance Reform Failed? Richard Hasen and Robert Bauer Debate"

Bob Bauer and I have begun this debate at the Legal Affairs website. We will each post five entries throughtout this week. Bob's first entry will appear by this evening.

Another Oped on Colorado Amendment 36 Problem

Frank Davies offers this commentary in the Miami Herald.

"Backup Voting System Could Cause Problems"

A.P. offers this report.

New York Times Urges More Poll Watchers

See this editorial.

"Among Black Voters, A Fervor to Make their Votes Count"

The New York Times offers this report.

Sinclair Broadcasting to Show Anti-Kerry Documentary

Following up on this front-page report in Saturday's Los Angeles Times, the Washington Post has run this report and the New York Times has run this report.

It is certainly unusual for a broadcast station to run what amounts to a long commentary against a candidate for federal office. (I give some statistics in my "Rupert Murdoch" article on how rare it is for broadcast stations to endorse candidates for office). But---from the point of view of federal election law (as opposed to, say, federal communications law---this is really no different from the New York Times endorsing a candidate for president (or running an oped supporting or opposing such a candidate).

"E-Voting Research Delayed, Experts Say"

A.P. offers this report.

Hayden on Majority-Minority Districts

Grant Hayden has posted a Findlaw commentary, Majority-Minority Voting Districts and Their Role in Politics: Their Advantages, Their Drawbacks, and the Current Law. Thanks to Roy Ulrich for the pointer.

"Behind the Scenes, Officials Wrestle Over Voting Rules"

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

Waterstone on Lane and Voting Rights

Michael Waterstone has posted Lane, Fundamental Rights, and Voting (forthcoming Alabama Law Review) on SSRN. Here is the abstract:

New federalism's premise is that the Courts are the ultimate arbiter of Congress's ability to use its Section 5 powers to enforce Section 1 of the Fourteenth Amendment. This Article argues that while this principle survives the Supreme Court's recent decision in Tennessee v. Lane, the rules have been changed for cases involving fundamental rights. In Lane, the Court's review of Congress' justifications and constitutional bases for passing Title II of the Americans with Disabilities Act was more relaxed than in previous new federalism cases. While Lane itself does not justify this departure, this Article suggests that the doctrinal and theoretical justification for this shift is that the Court should give a presumption in favor of the validity of Congressional abrogation of state sovereign immunity in cases involving fundamental rights.

This Article applies this view of Lane to a future category of ADA Title II fundamental rights litigation - cases involving the right to vote for people with disabilities. Although earlier new federalism cases would compel a different conclusion, after Lane, Courts should hold that the ADA validly abrogates the States' sovereign immunity in Title II voting cases. This has implications for the whole range of Section 5 legislation.

Finally, the disability rights community has criticized Lane for providing insufficient clarity for future Title II cases. This application of Lane to voting responds to that criticism, showing how the presumption in fundamental rights cases is sufficiently strong as to discourage needless litigation.

Michael is doing some very interesting work at the intersection of disability law and voting rights. I look forward to reading this paper.

Two by Gerken

Heather Gerken has put two articles on SSRN. I have read the first, Lost in the Political Thicket: The Court, Election Law, and the Doctrinal Interregnum (forthcoming in the University of Pennsylvania Law Review). Among other things, the article does a very good job clarifying and moving the debate forward between rights-based election law scholars and structuralists. Here is the abstract:

During the last year and a half, the Supreme Court has issued three important election law decisions in each of election law's main fiefdoms: race and redistricting, campaign finance, and the regulation of political parties. What has been missing from the commentary thus far has been an effort to connect the dots. This essay claims that these three, seemingly disparate decisions can be understood as part of a story that began more than four decades ago, when the Court first entered the political thicket. The Court has long tried to use a conventional individual rights framework - the bread-and-butter of legal analysis - to adjudicate what are often claims about the structure of the political process. An individual-rights framework, however, does not provide adequate analytic tools for resolving such challenges, as the Court's most recent opinions reveal. As a result, the Court as a whole seems to be in a doctrinal holding pattern, unsure of where to go next.

This essay thus argues that we are witnessing a doctrinal interregnum in election law. It charts the course the Court has taken thus far, exploring the connections between the Court's three most recent election law decisions and its prior jurisprudence. It argues that, despite their many differences, each case reveals the dilemma the Court now faces in resolving what are fundamentally structural claims with an individual-rights framework. Part II speculates on the next steps the Court will take. In doing so, it attempts to sharpen the terminology deployed in the "rights-structure" debate thus far and suggests a novel reading of Georgia v. Ashcroft, the Supreme Court's most recent race and redistricting case, as a bridge between the Court's prior strategy for adjudicating vote-dilution claims - policing substantive outcomes - and a more process-oriented approach that deploys a variant of the minority veto. The essay closes by reflecting on how courts might use their regulatory powers to create incentives for other institutional actors to work to improve the structural health of our democracy.

The second paper, which I have not yet read, is Second-Order Diversity and Disaggregated Democracy (forthcoming Harvard Law Review). Here is the abstract:

uch scholarship focused on democratic design is preoccupied with a single problem: how to treat electoral minorities in a majoritarian system. A term often deployed in those debates, particularly those focused on demographic difference, is diversity. When scholars use the term, they usually mean that something - a class, an institution, a decisionmaking body - should roughly mirror the composition of the relevant population.

The problem with this debate is that its participants often unthinkingly extend theories about diversity derived from unitary institutions to disaggregated ones - institutions where the governance system is divided into a number of equal subparts (juries, electoral districts, appellate panels, schools committees, and the like). Thus, despite their prevalence, scholars have not systematically considered how to tailor our normative commitment to diversity to the unique features of these disaggregated institutions.

This Article is a first step toward providing a conceptual framework for describing a recurring set of trade-offs we face when designing disaggregated institutions. Specifically, the paper claims that there at least two types of diversity - first order and second order. The idea I term first-order diversity fits the conventional understanding; it is the normative vision associated with statistical integration, the hope that democratic bodies will someday mirror the polity. The notion of second-order diversity, proposed here, posits that democracy sometimes benefits from having decisionmaking bodies that do not mirror the underlying population but instead encompass a wide range of compositions. Second-order diversity seeks variation among decisionmaking bodies, not within them. It favors interorganizational diversity, not intraorganizational diversity. It fosters diversity without mandating uniformity.

The notions of first-order and second-order diversity provide a framing device that allows us to connect and synthesize the insights offered by a broad array of legal scholarship in assessing the costs and benefits of each approach. This framework thus allows us to play a divergent set of literatures against one another, to find new grounds of criticism and as-yet unexplored sources of connection among them. And it helps put some meat on the bones of a number of undertheorized design practices, identifying values attached to those practices that scholars have thus far neglected.

Missouri Lawsuit on Voting Rights of Those Under Guardianship for Mental Illness

See this press release. Thanks to Grant Davis-Denny for the pointer.

"Libertarians Win Hearing in Debate Case"

The New York Sun offers this report, which begins: "The third and final debate between President Bush and Senator Kerry has been thrown into doubt after a state judge in Arizona ordered a hearing on whether the event, scheduled for Wednesday, should be halted because the Libertarian Party's nominee for president has not been invited." You can find the LP's complaint here (thanks to Doug Greene for this pointer).

Nader oped in Washington Post

See here.

"Election Spoiler May Turn Out to Be a Libertarian"

The New York Sun offers this report.

"Colorado's Electoral Fix Could Bolster House, Not American Voters"

Josh Spivak offers this Roll Call oped (paid subscription required). A snippet: "If this system is instituted on the national level, because of third-party candidates such as Ross Perot or Ralph Nader, elections would not be decided by the Electoral College but could instead be thrown into the House of Representatives."

More on Moore and underwear "bribery"

See here.

More Florida pre-Election Lawsuits

See here and here. For those who might find there to be too much pre-election litigation, ask yourself whether such litigation is better disposed of before the election or after the election, when everyone knows the partisan consequences of a judicial decision.

"Election 2004: Can We Avoid Déjà Vu All Over Again?"

The ACS Los Angeles Lawyer Chapter presents:

"Election 2004: Can We Avoid Déjà Vu All Over Again?"

Tuesday, October 19, 2004 from 7:00 - 9:00 p.m.
L.A. County Bar Association
Lexis-Nexis Conference Center

Co-sponsored with the Los Angeles County Bar Individual Rights Section

Featuring:
Deborah Goldberg,
Director, Democracy Program, Brennan Center of Justice;

Richard Hasen,
Professor of Law and William M. Rains Fellow, Loyola Law School;

Steve Kaufman,
Partner, Smith Kaufman LLP, Former Chief Counsel to the U.S. House of Representatives Democratic Caucus Special Committee on Election Reform.

Tuesday, October 19, 2004 from 7:00 - 9:00 p.m.
L.A. County Bar Association,
Lexis-Nexis Conference Center
281 South Figueroa Street
Los Angeles, California 90012

A reception will follow the event.

To RSVP, e-mail LosAngeles@acslaw.org by October 18, 2004.

More Nader Ballot Problems in Pa.

See this New York Times report. Thanks to Doug Greene for the pointer.

League of Women Voters Joins Ohio Suit Against Ohio's Provisional Voting Rules

See this press release.

"Preelection Legal Challenges Abound"

The Palm Beach Post offers this report.

"As Election Day Nears, Counting the Votes Faces New Pitfalls"

Don't miss this important article in the Wall Street Journal. Thanks to Steven Sholk fo the link.

Was Michael Moore Illegally Paying for Turnout?

See this article in Slate. I've written a fair bit about this topic, most extensively in my article, Vote Buying, 88 California Law Review 1323 (2000), and the Slate piece has it about right. The only thing I would add is that it is not clear that giving away Ramen and underwear in exchange for a promise to vote later really is paying for turnout rather than just an unenforceable promise and publicity stunt.

The more typical payment for turnout arrangements (as in California, where it is legal when there are no federal candidates on the ballot) require that the voter show a voting stub and then gets something---a free car wash, a chicken dinner, etc. Democrats have targeted these in Democratic areas as a way to get out the vote. (All of this is detailed in my article.) The Moore situation looks different, and I think would hardly be grounds for a prosecution.

I recall that during the 2000 election, my local car wash (which has a civic-minded owner) offered free car washes to those who showed a voting stub. I called the car wash to give the owner a heads-up. The manager thought I was threatening to turn him in for breaking the law and hung up on me, proving that no good deed goes unpunished.

Blogging to Resume Thursday Evening

See you then.

"FEC Wants Campaign Finance Decision Stayed"

A.P. offers this report.

"Financial Data on 527s"

Taxprof blog offers this post with many helpful links.

Texas Redistricting Case Listed for Oct. 8 Conference

See here. There is no notation yet that the Ninth Circuit's felon disenfranchisement case has been relisted.

"Colorado Initiative May Cause Election Strife"

A.P. offers this report.

"Students Switching to Vote in Ohio"

The Columbus Dispatch offers this report.

Michigan Ballots Don't Allow Vote for Bush

See this ballot (shades of the butterfly ballot, but worse!). Richard Winger reports here that the ballots are being reprinted and remailed.

Today's Supreme Court election law news

Although I have not seen a copy of today's order list yet [update: the order list is here), I am reliably informed that there was no decision whether to set the Texas re-redistricting case and there was no decision in the Ninth Circuit felon disenfranchisement case, Farrakhan v. Locke. Meanwhile, AP reports here that the Court refused to consider the Ninth Circuit's decision in Montana Right to Life v. Eddleman, upholding Montana's contribution limits for candidates and political committees.

Electronic Voting Forum

I have received the following announcement:

INFORUM and The Commonwealth Club present

THURSDAY OCTOBER 7

E-VOTING: PROBLEMS EXPECTED IN THE NOVEMBER ELECTION?

DAVID L. DILL, Ph.D., Founder and Board Director, VerifiedVoting.org
DANIEL TOKAJI, Professor of Law, Ohio University; Author, "Equal Vote" Blog
MARC CARREL, Assistant Secretary of State, California
DAN BURK, Registrar of Voters, Washoe County, Nevada
HENRY BRADY, Professor of Public Policy, UC Berkeley
KIM ZETTER, Senior Reporter, Wired News; Moderator

Heard some disturbing stories about electronic voting machines and the companies that make them? A significant portion of the electorate will vote electronically using ATM-like voting machines in November. The viability of the systems is still in question - a number of incidents have eroded confidence that the systems can ensure every vote is counted fairly. Could this year's Presidential election have balloting snafus like those in Florida in 2000? Find out from the experts.

6:30 p.m., Program | 7:30 p.m., Wine & Hors d'oeuvres Reception | Club Office, 595 Market St, 2nd floor, San Francisco | $12 for Members, $20 for Non-members, $7 for Students.

For reservations call 415/597-6705 or register online here.

"Stealthy Groups Keep Donors Secret as they Push Political Agendas"

Cox News Service offers this report.

"Kerry Accuses GOP of Suppressing Voting"

A.P. offers this report.

"Campaigns Spending Little on Web Ads"

The Washington Post offers this report.

"More Troubles for Diebold"

The New York Times offers this editorial.

"As Deadlines Hit, Rolls of Voters Show Big Surge"

The New York Times offers this report.

"Prop. 62 Puts Party Line on the Line"

The Sacramento Bee offers this report. [Disclosure: I am a lawyer for the proponents of Prop. 62.]

"Enduring Anachronism: Electoral College Distorts System"

The Sacramento Bee offers this editorial.

"Tax Rules Boost Interest Groups"

The Atlanta Journal-Constitution offers this report.

"In Florida, An Early Skirmish Over '04 Vote"

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

"Major Parties Already Honing Recount Strategy"

The Los Angeles Times offers this report.

"Registrars Assail Shelley's Handling of Voter Funds"

The Sacramento Bee offers this report.

Two New York Times Articles on Election Administration Issues

See Democrats Voice Concern About Overseas Vote and Voter Registrations Hit Snag Over Citizenship Box.

Tokaji on Electronic Voting and Democratic Values

Dan Tokaji has posted The Paperless Chase: Electronic Voting and Democratic Values on SSRN. Here is the abstract:

The 2000 election ignited a fierce controversy over the machinery used for voting. Civil rights advocates have called for the replacement of outdated paper-based voting equipment, like the infamous "hanging chad" punch card. Yet the introduction of paperless technology, especially electronic "touchscreen" machines, has induced widespread concern that software might be rigged to alter election results. This article examines the debate over electronic voting, which raises fundamental questions about the democratic values that should guide the administration of elections. It frames the debate by defining four equality norms embodied in federal voting rights laws and the Constitution. Electronic voting has the potential to advance racial equality, disability access, and multilingual access. At the same time, there are legitimate concerns surrounding the implementation of present-generation technology. The proposed "voter verified paper audit trail" is unlikely to resolve these concerns, though other measures may be taken to promote security and transparency. The article concludes that legislatures and courts have important roles to play in the transformation of voting technology, but that the most important decisions lie in the hands of state and local election officials. It suggests a legal structure that will protect basic voting rights while allowing for innovation and experimentation. Most important, the article urges that election reform no longer be viewed as a once-in-a-generation occurrence, but as an ongoing process that should proceed for as long as voting technology continues to improve.

Brennan Center Sues to Require Same Day Voter Registration in Connecticut

See this press release. This lawsuit is brought very close to election day. It is not clear from the press release whether this is intended to apply to the upcoming election. If it is, it would not surprise me to see a court refuse to consider it given that this suit could have been broughter earlier.

More Nader Ballot Access News Out of Arkansas and Wisconsin

Richard Winger has the details here.

Did Kerry-Edwards Coordinate with a 527 Through the Pennsylvania Governor?

That's the allegation made here.

"Issue Raised at FEC About Paying for Recounts"

The New York Times offers .

"Military Voter Education Underway"

The Washington Post offers this report.

More on Oho Election Woes

See this report in The Other Paper. Link via Daily Kos.