It's Not Over Yet in San Diego Mayoral Race

The San Diego Union-Tribune offers this report.

"Was that So Bad?"

This editorial on the first election under McCain-Feingold originally appeared in the Chicago Tribune.

"Home Away from 'Home'"

The NY Daily News offers this report, which begins: "State Sen. Ruben Diaz Sr. was elected to represent the Bronx's 32nd Senate District. There's just one problem - he doesn't actually live there."

"Rossi: Gov-Elect, but Not Gov-For-Sure"

A.P. offers this report.

"Nearly a Month Later, Ohio Fight Goes On"

A.P. offers this report, which begins: "Nearly a month after John Kerry conceded Ohio to President Bush, complaints and challenges about the balloting are mounting as activists including the Rev. Jesse Jackson demand closer scrutiny to ensure the votes are being counted on the up-and-up."

"Recount Effort is Expanded to Include New Mexico and Nevada"

The Washington Post offers this report.

Oped on Puerto Rico Recount

Mayra Montero writes Magic and Realism in today's New York Times.

"The New Palm Beach"

The Sacramento Bee offers this editorial, which begins: "On Election Day in San Diego, more citizens went to the polls to vote for Donna Frye for mayor than for incumbent Dick Murphy. Nonetheless, when all the votes a judge ruled could be counted were counted, it was Murphy who declared victory this week. That is a travesty."

"Step Toward Election Standards"

The Los Angeles Times offers this editorial, which calls on Congress to "set basic certification and oversight procedures" for electronic voting. The Times does not seem to be aware of the existence of the Election Assistance Commission, created after the Florida 2000 debacle in the Help America Vote Act of 2002. In Roll Call, Amy Keller writes "EAC to Continue Pursuing Voting Flaws" (paid subscription required).

"Most City Incumbents Opt Out of Spending Limit"

The Los Angeles Times offers this report.

"Electronic Voting 1.0, and No Time to Upgrade"

James Fallows writes this New York Times article. Link via Ed Still.

"Ohio Recount Taxes the Voters"

Fritz Wenzel offers this column in the Toledo Blade.

"Funding Law May Help Possible Hutchison Bid"

A.P. offers this report, which begins: " U.S. Sen. Kay Bailey Hutchison's possible gubernatorial bid could get a $6.7 million campaign boost if a provision tucked into a spending bill by congressional negotiators becomes law. The provision reverses a Federal Election Commission interpretation that barred members of Congress from transferring federal campaign funds to a state race." UPDATE: Roll Call reports (paid subscription required) that "[w]ithout floor debate or a single hearing, Congress changed election laws last week to allow Members to transfer campaign funds raised for a federal race to a run for state or local office."

Supreme Court Summarily Affirms New York Redistricting Case

According to today's order, only Justice Stevens would have set the case for argument.

Supreme Court Denies Cert in Albuquerque Campaign Finance Case

The A.P. story is here. There were no reported votes for cert. I predicted this cert denial here.

Analysis from Mike McDonald

He has written an oped, The numbers prove that 2004 may signal more voter interest for the Milwaukee Journal-Sentinel. And those who enjoyed his initial analysis of the Berkeley electronic voting study may wish to look at his more extensive analysis here. This should be updated again in a few days.

"Inmate Wants Voting Access While in Jail"

The Fresno Bee offers this report. Thanks to Peter Wagner for the link.

Bauer on Breyer's Campaign Finance Theories

Bob Bauer has just posted these extensive thoughts on Justice Breyer's views of campaign finance jurisprudence, as expressed most recently in his Tanner Lectures.

"Plenty of Individual Contributions"

Larry Noble and Steve Weiss write this Miami Herald oped on campaign finance. A snippet: "Elections certainly are growing more expensive, and deep-pocketed donors continue to wield a disproportionate amount of influence in Washington. But a closer examination of the numbers also reveals a more-uplifting trend -- the rise of the individual donor."

"Ohio Democrats Offers Support for Recount Effort"

The Washington Post offers this report.

"Federal Office to Probe Voting Procedures"

The Boston Globe offers this report.

"Bush Wins New Mexico by 5,988 Votes"

A.P. offers this report.

"Mayoral Drama Lurches Forward"

The San Diego Union-Tribune offers this report.

Federal Court Denies Request for TRO to Force Ohio Recount

The court's order is here. Dan Tokaji gives this extensive analysis of Ohio's recount and contest procedures, demonstrating, yet again, how close we came to another train wreck in Election 2004. Clarifiation on headline: The question at stake was one of timing. The requested TRO was not to require the recount -- the Secretary of State apparently has agreed that there will be one -- but to start it forthwith and to complete it before December 7, i.e., to speed up the Secretary's initial count so that the recount can begin sooner.

"League of Women Voters Won't Appeal San Diego Mayoral Ruling"

See this report. According to this story, Frye has not yet decided whether or not to appeal, though I believe one of the earlier news stories said she would not seek further action.

"GAO To Investigate Election Complaints"

CNN offers this report (thanks to ACS Blog for the link).

"Some Want Relief from Goofy Votes"

See this news from Wisconsin. A snippet: "But some municipal and county clerks aren't laughing about ballots with "Goofy" write-ins. Each write-in vote must be recorded on a form, which takes time away from other duties on election night, said Janice Dunn, administrator for the Milwaukee County Election Commission." Thanks to How Appealing for the pointer.

"Every Vote Matters"

Political Wire has this post, which begins: "Control of Montana's House of Representatives has apparently come down to two votes in one legislative district, according to the Billings Gazette."

"Wash. GOP Gets Court Date in Recount Suit"

A.P. offers this report.

"Voting-machine woes in Carteret have officials looking for answers"

A.P. offers this report from North Carolina. A snippet: "The Carteret County voting failure has brought a lot of hand wringing to elections officials and "I-told-you-sos" from activists who sounded the alarm about electronic balloting months ago. A touch-screen voting network there failed to record more than 4,400 votes cast before Election Day because its data storage was full - the result of outdated software and poor communication between the California company that made the machine and county officials."

"Once Again, Incumbents are the Big Winners"

Patrick Basham and John Samples offer these thoughts at the CATO website.

More on the San Diego Write-in Ruling

The Union Tribune article is here. The Los Angeles Times article is here. The Union-Tribune story indicates that the judge stated he was bound by the only appellate authority on point, Fair v. Hernandez, 116 Cal.App.3d 868 (1981). In that case, a court refused to count four write-in votes for a candidate where the candidate's name was written on a punch card, rather than on the correct space on the write-in ballot. The Fair court had concluded: "In each of these four instances the will of the voters was evident and the trial court so found. (Findings 36-39.) But it is not enough to find out generally the voter's will, such will must be expressed in the manner prescribed by law. (McFarland v. Spengler (1926) 199 Cal. 147, 152 [248 P. 521].)"

An appeal is possible, and it would go to a different appellate court than the court that decided Fair, meaning that court would not be bound by the Fair decision. Fair is also distinguishable on grounds that the Fair court held the instructions for casting a write-in vote were clear, whereas the League has argued in the trial court and could argue on appeal that they were not, at least as to absentee voters. The news stories indicate that a decision on an appeal by the League has not been made.

San Diego Ruling

The San Diego Union Tribune has a one sentence breaking news item on its home page reading: "BREAKING NEWS: Judge refuses request to force immediate count of all write-in ballots in mayoral race." More later.
UPDATE: The Union-Tribune is updating its story here to reflect developments. In its 5:14 update, it notes the following: "[Judge] Helgesen, who issued his ruling after hearing two hours of arguments on the matter, said state law, not city law, applies, because the ballot also consolidated races from other jurisdictions. 'The consolidation of the election dictates that state law would prevail upon the issus of counting the ballots,' Helgesen said, noting that under state law 'a write-in ballot would not count if a bubble were not filled in.'"

NYT Magazine Article on 527s in Ohio

See Who Lost Ohio?.

San Diego Update

As noted below, there is a new judge in the San Diego write-in case. According to a reliable source, that new judge is retired judge Eric Helgesen from Tulare County. My source notes that something is going forward today at 2:00 pm, but it is not clear whether it will be a full hearing.

"Touch Screens Reduced Spoiled Ballots"

The Miami Herald offers this report.

"Outcome of San Diego Mayoral Election May Be in Hands of Judge"

A.P. offers this report, which notes that the search for a new judge may delay things a few days. My weekend post on the most recent litigation is here.

"Election-Fraud Rumors on Web Refuse to Die"

The Sacramento Bee offers this report.

"Lawyers to Challenge Election in Ohio"

The Cleveland Plain Dealer offers this report.

"Opinion Backs Davis's Effort to Grant D.C. Vote in House"

The Washington Post offers this report, which begins: " former senior Justice Department official in the Bush administration has concluded that a constitutional amendment is not needed to grant the District voting representation in the House. The 25-page opinion by Viet D. Dinh, a former assistant U.S. attorney general, was commissioned by Rep. Thomas M. Davis III (R-Va.) as part of his effort to grant the District a vote in the House. "

More Criticism of the Berkeley Report

See here.

"Judge Refuses to Stop Wash. Count"

A.P. offers this report.

"The 28th Amendment"

William Safire writes this New York Times oped on the proposed amendment to the Constitution to elimnate Article II's natural born citizen requirement for President.

"Improving Provisional Ballots"

The New York Times offers this editorial.

More on the San Diego Write-In Lawsuit

The incumbent mayor, Dick Murphy, will be reelected unless one of the three lawsuits currently pending is successful, or unless there is a recount that will lead to a different result. News stories on the end of counting showing Murphy in the lead are here and here.

I have already blogged about two of the lawsuits, which seek a revote on grounds that the San Diego city charter prohibits write-in candidacies. I think the state court judge was right that this suit should be barred by laches, and the state case is now going up on appeal. A federal district court judge is hearing a parallel suit in a hearing Nov. 30.

The other lawsuit is quite interesting. According to the press reports, there may be as many as 4,000 or 5,000 votes for Donna Frye, the write-in candidate, where voters wrote in Frye's name on the ballot but they failed to fill in an oval bubble next to the write-in space. The League of Women Voters want those votes counted. Elections officials won't count them because of California Elections Code section 15432, subd. (a), which states:

Any name written upon a ballot for a qualified write-in candidate, including a reasonable facsimile of the spelling of a name, shall be counted for the office, if it is written in the blank space provided and voted as specified below:
(a) For voting systems in which write-in spaces appear directly below the list of candidates for that office and provide a voting space, no write-in vote shall be counted unless the voting space next to the write-in space is marked or slotted as directed in the voting instructions.

The rules for casting a vote told voters to "completely darken the oval next to" the written name of the write-in candidate.
The League raises a few arguments, some stronger than others.
1. The absentee ballot instructions did not indicate that the oval must be filled in. I had looked at those "1-2-3 instructions" the other day on the San Diego Registrar's website, but they seem to have been taken down. According to the League, the instructions did not say anything about darkening in the oval when one wished to vote for a write-in candidate. So one argument---and this appears to be the strongest one--is that it does not violate the California Elections Code to count the absentee ballots cast for Frye without the oval filled in, because those ballots in fact were cast in accordance with the instructions. The New Jersey Supreme Court apparently ruled that write-in votes should be counted under similar circumstances. (See here.)
If the judge agrees, it may be impossible at this point to know which were the absentee ballots cast in this manner, creating a difficulty in the remedy. Should all unbubbled write-in votes count? Only part? How many?
2. The League also argues that there is no rationale for the bubble requirement in this election. It can serve an administrative convenience purpose (it would be easier to find the write-in ballots) but the ballots in this case have already been sorted by hand. The real question is whether to ignore the rule as written. This presents a typical issue of the choice between following the rules as written and folloing the intent of the voter. We know in Florida, for example, that ballots where a voter both punched (or bubbled) a vote for Gore and wrote in Gore were not counted. Few argued that they should be. [UPDATE: My recollection here is at least partially incorrect. See here and here.) If the instructions are clear (but see point 1), there's a stronger fairness argument in favor of following the ex ante rules.
3. Relatedly, the League argues that not counting the votes violates equal protection under Bush v. Gore and the California constitution's guarantee that all votes cast in accordance with the state's laws shall be counted. I don't see this as adding much to the argument. If the rules were not followed, then the state Constitution doesn't require the counting of the votes. And even under the broadest reading of Bush v. Gore, I haven't heard anyone argue that the intent of the voter should be followed even if it violates state law. So the question returns to those absentee ballots. If the instructions were not clear, then those votes without bubbles arguably were cast in accordance with the voting instructions and should be counted.
Finally, there is a laches issue, as arose in the last suit. We know that Frye's attorneys and I believe others complained to elections officials about the bubble rule in advance---but when rebuffed by city officials, they did not seek judicial relief.
Murphy's lawyers exercised a peremptory challenge against the judge scheduled to hear the case (the same state court judge that ruled in the first case that write-ins should be counted). I do not know who will hear the case Monday, but all the Superior Court judges in San Diego have been disqualified to avoid the appearance of a conflict of interest; Murphy is a former Superior Court judge.

"Recount Begins in Wash. Governor's Race"

A.P. offers this report.

"Top Bush Fundraisers Move on to Inaugural"

The Los Angeles Times offers this report.

"How Do We Fix State Elections"

The News Tribune (Tacoma) offers these thoughts.

Kristof on Creating Nonpartisan Redistricting Commissions, and Anonymous Campaign Donations

All in one New York Times column!

"California Rep. Lofgren proposes abolishing Electoral College"

A.P. offers this report.

"Academia Still Fixated on John Kerry"

A.P. offers this report, which discusses the new Berkeley study.

Election Administration Humor

The Onion offers Republicans Call for Privitzation of Next Election.

ACLU Sues to Overturn Rhode Island Laws Limiting Contributions and Expenditures in Ballot Measure Campaigns

The Providence Journal story is here. As it happens, this week I posted this paper on the constitutionality of such laws in light of recent Supreme Court rulings.

"Non-Profits Tangle Schwarzenegger's Fund-Raising Machine"

A.P. offers this report.

"Kerry to Give Dems Leftover Campaign Cash"

A.P. offers this report.

San Diego Write-in Litigation Saga Update

A hearing on the "fill in the bubble" suit is set for Monday. See here. The outcome will likely depend on this litigation. According to this Los Angeles Times report, one expert opines: "Donna Frye will not be the top vote-getter"..."The oval ballots are her last chance."

"Release of Exit Poll Data to Be Slowed in Elections"

A.P. offers this report.

"54% of Provisional Ballots Cast in County Were Valid"

The Ann Arbor News offers this report.

Views of the Berkeley Study of Florida's Electronic Votes

Wisconsin political scientist Ken Mayer writes:

Count me as skeptical; there are many assumptions built into this analysis, and it excludes a number of variables that would clearly affect vote percentages -- Nader's lack of presence in 2004 vs. 2000, the problems with the Palm Beach ballot (which mean that a key vote percentage from 2000 is probably off), the number of registered voters, African Americans, etc. The specification, which includes both squared and interaction effects, doesn't strike me as particularly realistic.

Moreover, a more sophisticated analysis would look not at the county level, but at precincts, which give you many more independent variables and much more variation. Finally (although this introduces some ecological inference problems), the key is not the percentage of the vote, but the number of votes. And I'd be far more convinced if a similar analysis of the Senate vote failed to show the same sorts of movement (if it did, that would clearly indicate that the assumptions of the presidential analysis were off, or that the conspirators were so stupid that they'd risk cheating on two elections at the same time).

Finally, it always sets my spider sense atingling when a quantitative social science paper uses more significant digits in the results than you have in the underlying variables. You can't get 7 or 8 meaningful significant digits (table 3) when the original data only have 1 or 2 significant digits. That implies a level of precision that you just don't have.

More thoughts from Dan Tokaji and The Mystery Pollster.

"Group Cites Electronic Voting Problems"

A.P. offers this report, which begins: "he record use of electronic voting machines on Nov. 2 led to hundreds of voting irregularities and shows the need for higher standards, a voting rights group said Thursday."

Berkeley Report on Electronic Voting Problems in Florida 2004 Now Available

You can find the report here. A summary is here. From the summary:

- Irregularities associated with electronic voting machines may have awarded 130,000 excess votes or more to President George W. Bush in Florida.

-Compared to counties with paper ballots, counties with electronic voting machines were significantly more likely to show increases in support for President Bush between 2000 and 2004. This effect cannot be explained by differences between counties in income, number of voters, change in voter turnout, or size of Hispanic/Latino population.

-In Broward County alone, President Bush appears to have received approximately 72,000 excess votes.

-We can be 99.9% sure that these effects are not attributable to chance.

Will Senator Specter Support the Nuclear Option to End Filibusters?

From this statement to the Senate Judiciary Committee: "If a rule change is necessary to avoid filibusters, there are relevant recent precedents to secure rule changes with 51 votes."

This is going to be the key question to watch once a Supreme Court opening emerges. This is troubling for those, like me, who saw Specter as the potential source of compromise on procedures between Democrats and Republicans. I think the statement by Specter is a signal that he has been defanged, and can't really serve as an honest broker to move beyond the parties' stalemate. It is too bad, too, because he is someone who I think was in the right ideological and party position to pull something off.

"Long Lines on Election Day Enhance Appeal of Early Voting"

USA Today offers this report.

My Partisan Gerrymandering Article Now on Westlaw

Those of you with Westlaw access can find my article, "Looking for Standards (in All the Wrong Places): Partisan Gerrymandering Claims After Vieth," 3 Election Law Journal 626 (2004) at this link.

"It's Rossi by 261; Recount is Next"

The Seattle Times offers this report on the Washington gubernatorial race.

"Suit Wants All Write-in Votes Tallied"

The San Diego Union-Tribune offers this report. See also this L.A. Times report.

"Democrats Take Up Fight Over Provisional Ballots"

The Cleveland Plain Dealer offers this report.

"McCain-Feingold Did Its Job"

Al Hunt offers this commentary in the Wall Street Journal. Thanks to Steven Sholk for the pointer.

"FPPC Curbs Gifts to Issue Panels"

The Sacramento Bee offers this report.

"How Much Money is Enough for a Safe Incumbent?"

Stuart Rothenberg tackles this question in his Roll Call column (paid subscription required).

Berkeley Study on Possible Florida Electronic Voting Problems

Today, researchers at UC Berkeley are holding a press conference raising questions about electronic voting in Florida 2004 [NOTE: An earlier version of post said 2000]. From the media advisory: A research team at UC Berkeley will report that irregularities associated with electronic voting machines may have awarded 130,000-260,000 or more excess votes to President George W. Bush in Florida in the 2004 presidential election. The study shows an unexplained discrepancy between votes for President Bush in counties where electronic voting machines were used versus counties using traditional voting methods. Discrepancies this large or larger rarely arise by chance - the probability is less than 0.1 percent. The research team, led by Professor Michael Hout, will formally disclose results of the study at the press conference."

"Ohio Finds Possible Double Votes, Counts"

A.P. offers this report.

Justice Breyer on Campaign Finance Reform

Here is a draft of Justice Breyer's Tanner lecture delivered at Harvard Law School. At page 10, he begins a discussion of campaign finance reform, which looks like a continuation of his earlier work justifying the Court's upholding such laws under a "participatory self-government" rationale. (I discuss that rationale and its relationship to the Supreme Court's recent cases in this field here.). Thanks to How Appealing for the pointer.

"Dilution of Votes By Deception"

See this story from Louisiana, about a possible lawsuit under the Voting Rights Act for the Democratic Party's failure to include an African-American candidate's name on a flyer mailed to voters.

More on Schwarzenegger Fundraising

See this San Francisco Chronicle report. See also Foundation Will Pay Governor's Hotel Tab in the Sacramento Bee. The Chronicle article notes that new regulations have kicked into place Nov. 3 limiting contributions to ballot measure committees controlled by candidates and officeholders. I discuss the constitutionality of that provision in my draft article linked below.

Second Circuit Affirms Lower Court Grant of Preliminary Injunction in New York Party Case

This opinion in Green Party v. New York State Board of Elections was posted today. A snippet:

In the district court, plaintiffs challenged the constitutionality of New York State's voter enrollment scheme, in particular Election Law § 5-302(1) (1998). That statute states that when a political party fails to receive at least 50,000 votes for that party's gubernatorial candidate in the previous election, see id. § 1-104(3), defendants Commissioners of the State Board of Elections are required to remove that political party's name from the voter registration form and convert voters in such party to non-enrolled voters. The statute thereby removes a voter's affiliation with such party from the state's registered voter lists. That removal is challenged in this litigation as violating voters' constitutional right of association. The right of association guarantees individuals the right to join with like-minded individuals to accomplish a shared political objective that is protected by the First Amendment.

The appellate court found that the district court did not abuse its discretion in holding that the law indeed violated the First Amendment.

"Ohio Provisional Ballots Seem Legitimate"

A.P. offers this report.

"Rethinking the Unconstitutionality of Contribution and Expenditure Limits in Ballot Measure Campaigns"

I have posted this draft of an article I will present at the Conference on Direct Democracy Jan. 14 and 15 in Irvine. The article will appear in Volume 78, No. 4 (May 2004) of the Southern California Law Review.

Here is the abstract:

Supreme Court precedent dating back to the 1970s and 1980s precludes state and local jurisdictions from limiting financial contributions to committees formed to support or oppose ballot measures or from barring corporate expenditures in ballot measure campaigns. These precedents emerged from the Supreme Court at a time of its greatest hostility to campaign finance regulation, when it viewed such laws as impermissibly impinging on the rights of free speech and association guaranteed by the First Amendment. These precedents are ripe for reexamination in light of the Supreme Court's new-found deference to campaign finance regulation, culminating in 2003's McConnell v. Federal Election Commission, a case upholding the major provisions of the Bipartisan Campaign Reform Act of 2002.

This Article considers three potential ballot measure campaign finance regulations and their likelihood of passing constitutional muster under the more recent precedents: a law limiting contributions to ballot measure committees controlled by officeholders; a law limiting contributions to all ballot measure committees; and a law limiting expenditures in ballot measure campaigns by corporations and labor unions. Although all three proposed laws pretty clearly would have been struck down by the Supreme Court in earlier decades, they have a surprisingly good chance of passing muster today.

One (obvious) purpose of this Article is to consider constitutional questions over ballot measure limits that courts inevitably will confront in coming years. But a second and equally important purpose is to use this analysis to consider the role that evidence plays in the Court's campaign finance jurisprudence. The Court's demand for evidence in campaign finance cases is shifting and imprecise. In fact, evidentiary analysis appears often to be a proxy for a determination on the merits made more on faith than evidence. In the final part of this Article, I consider the appropriate role that evidence should play in campaign finance cases. I argue that a more precise and transparent evidentiary inquiry into the connection between the goals of campaign finance laws and the means of achieving them will assist fair-minded judges in the inevitable constitutional balancing. I argue decidedly against the role that evidence currently plays in Supreme Court analysis of campaign finance cases as well as against Professor Pildes's alternative proposed "motive" test for judging campaign finance constitutional challenges.

"Scalia Tells University Crowd to 'Get Over' 2000 Election"

Knight-Ridder offers this report. Here is a snippet:

Scalia, who was at Rackham Auditorium to speak on the philosophy of constitutional interpretation, was asked by a member of the audience whether, if he had the chance, he would revisit his decision in the Gore-Bush 2000 election. Scalia cut off the questioner , saying, "I'm inclined to say it's been four years and an election. Get over it." That drew loud boos from the crowd. Scalia voted with the 5-4 majority in 2000 to cease the recount of disputed votes in Florida.

Scalia continued, "The issue is not whether the decision should have been decided in the Florida or U.S. supreme courts, but that the Constitution had been violated. ... The only decision was to put an end to it after three weeks and looking like fools to the rest of the world. It was too much of a mess."

Will the Next Congress Consider Campaign Finance Reform and Further Election Administration Reform?

This article in Roll Call (paid subscription required) notes that House Administration Chair Bob Ney (R-Ohio) plans to examine both issues next year. It is far from clear that this Congress will do anything on 527s, the broken public financing system for presidential campaigns, and the urgent need for additional election adminstration reform.

New Lawsuit Over San Diego Mayoral Race

If the incumbent mayor of San Diego ends up ahead in the vote counting there over a write-in candidate who had been leading, the write-in candidate is likely to sue over the decision of San Diego elections officials not to count write in votes where the write-in candidate's name had been filled in by voters but the voters failed to fill in an oval indicating that they were declaring a write-in vote. See this Los Angeles Times report and this San Diego Union-Tribune report.

This raises a pattern of litigation we have seen in Florida and elsewhere. Is it more important to stick with the technical rules for casting votes or following the "intent" of the voters, assuming, as in this case, the intent can be fairly ascertained without the need for much discretionary judgment? The issue may be more complicated in the San Diego case by the possible failure of elections officials to give adequate instructions for casting a write-in vote. According to the Union-Tribune article, "The lawsuit is likely to note that instructions for absentee voting sent by the registrar's office did not explicitly tell voters they needed to fill in the oval if voting for a write-in candidate."

19-Vote Difference in Washington Gubernatorial Race; Further Counting, Recounts, and More Lawsuits are Coming

See here.

"In ATMS, Not Votes, We Trust"

Anne Applebaum writes this Washington Post column.

"GOP Pushes Rule to Protect DeLay's Post"

The Washington Post offers this article on a proposed rule change that will allow Tom DeLay to keep his leadership post, even if he is indicted by a grand jury for fundraising issues connected to the Texas re-redistricting.

"Governor's Race Keeps Puerto Rico in Suspense"

The New York Times offers this report, which begins: "If Florida's five-week recount after the 2000 presidential election seemed endless, pity Puerto Rico. A recount is all but certain in the race for governor here, after the Election Night tally gave Anibal Acevedo Vilá, the candidate who favors keeping the island's commonwealth status, a margin of just 3,880 votes. But the process will not start until December, and come Christmas - even New Year's, some predict - Puerto Ricans may still be guessing who their next governor will be."

"Campaign Finance Reform and Progressive Politics"

Bob Bauer posts on this topic here.

Social Science Research Council Develops New Program on Elections and Voting

The website of the new National Resarch Commission on Elections and Voting is here. The initial press release is here. The organization has assembled an impressive group of participating scholars. They also have an e-mail list, which someone put me on without asking. I'm glad to be on the list, but that is not good form.

"Ohio Has Clearer Picture of Ballots Now"

A.P. offers this report.

More Voting Snafus from Election 2004

See here and here.

Paul Smith on Election Law 2020

Check out this post by Paul Smith, part of this blog put together in advance of a conference by the Yale chapter of the American Constitution Society on the Constitution in 2020.

"Nader Activists Ask for N.H. Recount"

A.P. offers this report.

Perspectives on Politics Publishes Interesting Symposium on Election Administration

Volume 2, No. 3 (Sept. 2004) just arrived in my mailbox. The articles unfortunately are not on line, but here is a list of the articles from the Table of Contents:

Symposium: U.S. Elections--How the Rules You Choose and the Way You Count Determine the Winners You Get

Introduction
Henry E. Brady

Punishment and Democracy: Disenfranchisement of Nonincarcerated Felons in the United States
Jeff Manza and Christopher Uggen

Voter Registration and Turnout in the United States
Benjamin Highton

Punch Card Technology and the Racial Gap in Residual Votes
Justin Buchler, Matthew Jarvis, and John E. McNulty

The Wrong Man is President! Overvotes in the 2000 Presidential Election in Florida
Walter R. Mebane, Jr.

Did Illegal Overseas Absentee Ballots Decide the 2000 U.S. Presidential Election?
Kosuke Imai and Gary King

Pildes on "The Constitutionalization of Democratic Politics"

Rick Pildes has written this Supreme Court Foreword in the Harvard Law Review (Volume 118, No. 1 (2004)). This is a very important piece that ties together some of Rick's larger ideas about the role of courts in regulating the political process. A must read.

Issacharoff on Section 5 of the Voting Rights Act

Sam Issacharoff has written Is Section 5 of the Voting Rights Act a Victim of Its Own Success?, 104 Columbia Law Review 1710 (2004). Here is the abstract:

With the 2007 renewal date for section 5 of the Voting Rights Act now approaching, the question must be addressed whether the legal and practical preconditions for this extraordinary statute still exist. This Essay suggests that there were four preconditions necessary for the striking successes that section 5 had in transforming politics in its covered jurisdictions: the urgency of swift intervention to counteract the complete exclusion of black citizens from political life in the South; the ease of the administrative remedy; the absence of political competition in the one-party covered jurisdictions; and the lack of any incentive toward partisan manipulation of the preclearance powers exercised by the Department of Justice. Each of these factors has been changed by the creation of a robust political environment in the jurisdictions covered by section 5, particularly by the establishment of an important core of influential black elected officials. This leads to the question whether the success of section 5 has compromised its mission, as reflected in the major decisions under section 5 following the post-2000 reapportionment. The Essay concludes by questioning whether section 5 has served its purpose and may now be impeding the type of political developments that would have been a distant aspiration when the Voting Rights Act was first passed.

Nagle on Counting Votes

John Copeland Nagle has published How Not to Count Votes, 104 Columbia Law Review 1732 (2004), a book review on books about the 1876 election with much to say about the 2000 election. Here is the abstract:

Rutherford B. Hayes defeated Samuel Tilden by one electoral vote in the presidential election of 1876. In Fraud of the Century: Rutherford B. Hayes, Samuel Tilden, and the Stolen Election of 1876, Roy Morris, Jr. concludes that the election was stolen from Tilden by Republican partisans serving on the canvassing boards in the three Southern states—Florida, Louisiana, and South Carolina—that were still under the control of Republican governments backed by the federal army. But in Centennial Crisis: The Disputed Election of 1876, Chief Justice William H. Rehnquist defends the integrity and the actions of the Supreme Court Justices who served on the special Electoral Commission that Congress established to resolve the disputed claims about the election. The 1876 election, and the analogous difficulties attending the 2000 election, demonstrate the need to consider who counts votes in contested elections, and how to best balance the sometimes competing needs of independence, expertise, and timeliness.

Hayden Gets Tenure

Congratulations to Grant Hayden, who was recently awarded tenure by Hofstra University. Grant has written some very interesting articles on the one person, one vote rule. His article, Resolving the Dilemma of Minority Representation, will be published by the California Law Review in December.

Post-Election Conference Nov. 17

You can find details about this very interesting conference on voting and campaign finance issues here. It is sponsored by the American Enterprise Institute, the Brookings Institution, the Campaign Legal Center and the Reform Institute.

CALL FOR PAPERS: “ELECTION LAW IN THE 2004 ELECTION”

Election Law Journal, a quarterly, peer reviewed publication edited by Daniel H. Lowenstein and Richard L. Hasen, will publish a special symposium issue in 2005 on the topic “Election Law in the 2004 Election.” Topics to be addressed may include—but are not limited to—the following: HAVA-related analysis, particularly of provisional ballots and voter identification rules; campaign finance law, including the role of the McCain-Feingold law, the rise of “527” organizations, and issues related to the public financing of presidential elections; ballot access, including the Nader litigation; the Electoral College; voting technology controversies; and the role of redistricting in the 2004 election. Articles need not be limited to the 2004 election, but should address issues that in one way or another were raised by or affected that election. Articles may be oriented toward policy or law. Empirical studies bearing on pertinent issues are also welcome.

Manuscripts should be submitted via e-mail to mathews-at-law.ucla.edu and rick.hasen-at-lls.edu by June 30, 2005. We also encourage authors to submit a proposal or abstract to the editors at these e-mail addresses by January 31, 2005. Preference will be given to articles for which we receive a proposal or abstract. Potential authors should also feel free to submit queries in advance of submitting their proposals, abstracts, or manuscripts for review.

Articles should be accessible and of interest to government officials, practicing lawyers, journalists, academics from various disciplines including law, political science, public policy, history, and economics, and others with an interest in electoral institutions, law, and administration. Articles should be written in a cogent style, appropriate to the reader groups identified above. Documentation should be provided to the extent necessary, but otherwise articles should not be heavily footnoted. Published articles ordinarily will not exceed 20,000 words, and articles of 15,000 words or less are preferred. We do not require a particular style for references. You may use law school “Blue Book” style, the style manual of the American Political Science Association, or any other style understandable to readers from a variety of professions and disciplinary backgrounds that contains necessary bibliographic information.

If the manuscript contains self-identifying references, a redacted version should be sent to facilitate anonymous review. For authors submitting electronically, title pages with author information should be sent as a separate file.

More information about the journal is available at its website.

"Groups Sue Fla. County Over Voting Glitch"

A.P. offers this report.

"Waiting for a Governor in Washington"

The Los Angeles Times offers this report.

Judge Rules Write-in Challenge in San Diego Barred by Laches

Here is the San Diego Union-Tribune report. A federal suit is still pending, but I think the claim there is even weaker, for reasons I gave here. The Los Angeles Times reports that the losers in state court may appeal.

News Coverage of Yesterday's GW Conference on Law and Democracy

A.P. offers Election Law Experts Suggest Changes to Provisional Voting. BNA (paid subscription required) offers Ickes Says 527 Groups to Continue But Party Needs to Be Strengthened. Bob Bauer's website offers this recap of two panels at the conference.

Bauer on Law and Democracy

Don't miss this post by Bob Bauer, "Where Law and Democracy Meet Political Law."

"Our Increasingly Comfortable Incumbents"

Eliza Newlin Carney offers this column in National Journal. I have always liked Carney's work, and now National Journal is making her columns available without a paid subscription at the link above.

Regular Blogging to Resume Tuesday

I'll be here until then.

"In New Mexico, Bush vs. Kerry Is Still an Issue as Votes Trickle In"

The New York Times offers this report.

Court Order Issued in Washington State Provisional Ballot Suit

See this A.P. report.

"New challenge to Frye candidacy filed"

The San Diego Union-Tribune offers this report, with the following subhead: "Suit says Republicans deprived of voting rights." See also this LA Times report.

"TV Ads Advocate 'Amend for Arnold'"

The Los Angeles Times offers this report, with the following subhead: "Schwarzenegger backers campaign to change the U.S. Constitution on presidential eligibility."

"Looking for Voter Reform, Groups Keep Eyes on Ohio"

The Los Angeles Times offers this report, with the following subhead: "A coalition probes problems at the polls as Libertarians and Greens work toward a recount."

A Bit More on the San Diego Write-In Cases

Following up on my earlier posts here and here, a few more thoughts on this case.

1. The federal claims are very weak. I had a chance to look at the federal complaint, which basically alleges that San Diego's allowance of a write-in candidacy here violates the First Amendment right to association (under the political party association cases such as California Democratic Party v. Jones) and equal protection. In essence, the argument is that because the runoff was between two Republicans, allowing a Democratic party write-in is unconstitutional.
This claim strikes me as quite weak. Assuming (a big assumption--see number 2 below) the federal court would hear this claim on the merits, I think it is really weak. This is not a party primary or election (this is a runoff in a non-partisan election), so party associational rights are not implicated. And an equal protection claim is trumped by the city's right to structure its election in any reasonable way. Cases like the Burdick case give the city widespread discretion to decide how best to structure their electoral process, including to allow write-ins to run in a runoff election.

2. The federal case cries out for abstention. Here you have a pending state court case, and it is a case that potentially resolves any constitutional issues (e.g., the state court could rule that the write-in votes won't count under local law). It is hard to see a federal court deciding to get involved at this point.

3. The laches argument in the state suit. As readers of this blog know, I'm a big believer in the laches doctrine in election law cases. If you have a chance to sue about an election problem before an election, you should have to do so before and forfeit your chances to sue after. Why didn't someone sue before the election to block San Diego from allowing voters to write in candidates in the election? To allow the suit now gives people an option to sue to overturn the rules only after viewing the result under those rules.

4. The question on the merits could be a close one. Assuming laches doesn't bar the state law suit, I would need to do more research to form an opinion on the local law question---whether the city charter trumps the municipal code because of a conflict between the two. As my earlier post indicated, it is not clear that the two are necessarily in conflict.

"Democrats Sue Wash. County Over Ballots"

A.P. offers this report.

"KingCo Fights Demo Suit Over Provo Ballots"

KATU2 (ABC television affiliate in Washington State) offers this report on a lawsuit that could affect the outcome of the Washington gubernatorial race.

"Computer Glitch Changes Election Result"

Following up on this post regarding a voting problem in Indiana, A.P. offers this report.

Second Lawsuit Filed in San Diego Write-in Case

According to this report (with a poorly written headline), a second suit has been filed in federal court: "plaintiffs in the federal lawsuit allege a scheme to dilute votes that they contend should have gone to the top two vote-getters – both Republicans – from the primary election."

Did Long Lines in Ohio Cost Kerry the Election?

So suggests this article in the Boston Phoenix (see page 2). Thanks to Jeff Hauser for the link.

Will Nader Ask for a Recount in Ohio?

See this report. Here is OSU's summary of the Ohio recount procedures.

"Newspaper Accuses Group of Violating Election Law"

A.P. offers this report, which begins: "The Eureka Times-Standard has filed a complaint with the California Fair Political Practices Commission alleging that a political group that produced campaign mailers and TV ads about a city councilman should have to identify the people behind it."

"Some Still Fighting Election Outcome"

The Philadelphia Inquirer offers this report, with the following subhead: "Reports of voting problems have fueled claims of fraud. Experts - and Kerry lawyers - disagree."

"Watchdogs: 'Soft Money' Law Needs More Work"

A.P. offers this report.

The New Mexico Mess Continues

See here.

"Glitch Causes Franklin County Recount"

The Indianapolis Star offers this report, which begins: "Election equipment counted straight-party votes for Democratic candidates as Libertarian votes, an error that could affect election outcomes in as many as nine counties, the Richmond Palladium-Item reported today." Thanks to Jeff Hauser for the link.

"As Fast as Blogs See Vote Fraud, Web Is Proving Rumors Wrong"

The New York Times offers this report; see also Mostly Good Reviews for Electronic Voting. See also this A.P. report (link via Ed Still).

San Diego Mayoral Write-in Controversy

It looks like a write-in candidate may win the mayoral race in San Diego (a situation that has captured the attention of the New York Times).

A legal challenge has been mounted to the ability of voters to choose a write-in candidate for mayor in a runoff between two listed candidates. Here are news reports on yesterday's developments, including the recusal of all San Diego area judges: A.P.; San Diego Union-Tribune; Los Angeles Times; Long Beach Star-Telegram (noting that the Long Beach mayor in 2002 won as a write-in).

According to the news articles, the legal question is whether there is a conflict between the municipal code, which permits write-in candidates, and the city charter, stating that the winner of the general election must receive a majority of the votes.

Here is what I found in the relevant part of Article II, Section 10 of the city charter:

All elective officers of the City shall be nominated at the municipal primary election. In the event one candidate receives the majority of votes cast for all candidates for nomination to a particular elective office, the candidate so receiving such majority of votes shall be deemed to be and declared by the Council to be elected to such office. In the event no candidate receives a majority of votes cast as aforesaid, the two candidates receiving the highest number of votes for a particular elective office at said primary shall
be the candidates, and only candidates, for such office and the names of only those two candidates shall be printed upon the ballots to be used at the general municipal election.

It looks like the argument hinges on the language about the two finalists being "the candidates, and only candidates, for such office." Should this trump Section 27.0301 of the municipal code, which flatly provides: "Write-in candidates are permitted in municipal elections including special elections called by the City Council pursuant to Section 27.0107 of this article"?

It is certainly possible to read the sections in harmony, so that the "only candidates" language applies to those candidates who are listed on the ballot. But of course it is also possible to read the charter as conflicting with the coe, and presumably trumping it.

Why the conflict? Perhaps it has to do with the fact that San Diego's old ban on write-in candidates was struck down by the California Supreme Court, in precedent that the California Supreme Court overruled a few years ago in a case upholding San Francisco's right to ban write-in candidacies. Fred Woocher has more details here.

Foley on Provisional Ballot Problems

See here.

New Mexico's Vote Counting for President is Still a Mess

See this report in the Albuquerque Journal.

"The Next Reform Battle"

The Palm Beach Post offers this editorial, which begins: "Don't ask people in New York or Alabama if federal campaign-finance reform is working. They were solid blue and red long before Nov. 2, so their TV commercials were about soap and soda. Ask people in Florida, Ohio and other battleground states inundated with spots trashing or deifying George Bush or John Kerry. No way, no how did McCain-Feingold work."

"Help America Vote"

The Washington Post offers this editorial.

"Rossi Leads Washington Governor's Race"

A.P. offers this report.

"No Vote Necessary: Redistricting is Creating a House of Lords"

David Broder offers this Washington Post column.

"Latest Conspiracy Theory--Kerry Won--Hits the Ether"

The Washington Post offers this report.

"Latest Conspiracy Theory--Kerry Won--Hits the Ether"

The Washington Post offers this report.

Two By Chin

Jack Chin has published "Reconstruction, FelonDisenfranchisement, and the Right to Vote: Did the Fifteenth Amendment Repeal Section 2 of the Fourteenth Amendment, 92 Georgetown Law Journal 259 (2004) and "The 'Voting Rights Act of 1867': The Constitutionality of Federal Regulation of Suffrage During Reconstruction," 82 North Carolina Law Review 1581 (2004). I read the Georgetown piece in draft and recommend it highly.

Evan on Election Reform

I have just received in the mail a copy of William M. Evan, Voting Technology, Political Institutions, Legal Institutions and Civil Society: A Study of the Hypothesis of Cultural Lag in Reverse, History & Technology, Vol. 20, No. 2 (June 2004). Here is the abstract:

The 2000 Presidential election was plagued by butterfly ballots and 'pregnant chads'. Electronic voting systems, lacking verifiable paper trails that are subject to possible fraud, promise to wreak havoc with the 2004 Presidential election. There is a great diversity of systems of voting technology in the 50 states: from paper ballots, lever-operated machines and punch cards to optical scanners and electronic systems. Associated with each technology is an estimated error rate. The underlying theory of this paper was set forth by William F. Ogburn in his famous book entitled Social Change, published in 1922. Dividing culture into material and non-material elements, Ogburn argued that non-material elements lag behind material elements. His explanation for this lag is that technology, which underlies material culture, changes at a faster rate than elements of non-material culture. Obgurn did not contemplate the possibility of a reverse lag, viz., technology lagging behind non-material culture. In analyzing the anomalous relationships between voting technology, political institutions and legal institutions, a striking instance of a 'reverse cultural lag' is discerned. To eliminate the phenomenon of the reverse cultural lag, there is a need for a federally-funded program of a uniform, state-of-the-art voting technology, plus an amended Help America Vote Act, to implement the innovations in the 3,114 counties. The complex problems reviewed in this paper point to a vexing question: how do we educate an electorate in a democratic society--such as the United States in the twenty-first century--to be responsible for ensuring that periodically-elected representatives implement the will of the people?

"Losing by 335,000 in N.H., Nader Demands a Recount"

The Washington Post offers this report.

"Remembering Damon Chappie"

The Hill offers these thoughts.

"Internet Buzz on Vote Fraud is Dismissed"

The Boston Globe offers this report.

"L.A. County May Stick with Inkavote Ballots"

The Los Angeles Times offered this report last week, but I forgot to link to it. Note the 1.6% undervote rate for president using these machines, compared to the 0.43% for users of the county's electronic voting machines used for early voting (of course, there may be fewer intentional undervoters using early voting).

Los Angeles Times Endorses Independent Redistricting Commission for California

See this editorial.

"More Campaign Reform"

The Las Vegas Review Journal offers this editorial.

Harwood on Abolishing the Electoral College

John Harwood offers these thoughts in the Wall Street Journal. Thanks to Steven Sholk for the link.

Bauer on Bailey

Bob Bauer offers these comments on Michael Bailey's new article, "Two Sides of Money in Politics." 3 Election Law Journal 653 (2004). I highly recommend Bailey's article for those interested in a broader theoretical discussion of campaign finance regulation.

Six Democratic Members of Congress Call on GAO to Undertake Investigation of Election 2004

I have posted their letter here. The letter requests an investigation into the efficacy of new voting technology used in 2004, how election officials responded to voting machine problems, and what can be done to improve election administration.

"FEC Dismisses Mailing List Complaint"

A.P. offers this report, which begins: "A federal panel has decided that a list of conservative activists given to President Bush's campaign appears to be an illegal corporate contribution, but the roster isn't valuable enough to warrant government action."

"Bush or Bust"

The Times-Picayune (La.) offers this report, with the following subhead: "To comply with polling rules, woman strips down to bra to cast vote."

"Courts at Odds in Legal Battle Over Felons and Voting Rights"

The Christian Science Monitor offers this report on the cert. denials in the Ninth and Second Circuit cases.

"Ohio Set to Reckon with Outstanding Ballots"

The Los Angeles Times offers this report with the following subhead: "Experts and Kerry campaign officials agree provisional and overseas absentee votes won't change outcome, but the count draws scrutiny."

Reports on the Supreme Court's Felon Disenfranchisement Cert Denials

See this New York Times report and this law.com report.

"System Still Fails Voters"

Frank Askin offers this Newark Star-Ledger oped.

"Prop 1: Democracy"

Roll Call offers this editorial calling on states with the initiative process to adopt Iowa-style redistricting commissions through the initiative process.

Bauer on Political Parties After BCRA

Bob Bauer disagrees with some of the analyses offered in recent days suggesting that parties have done well under McCain-Feingold.

Sad News: Roll Call's Damon Chappie Has Passed Away

For those who knew him, this is very sad news. Damon was bright and inquisitive, with a good sense of humor, and a great journalist. Here is the Roll Call story:

Damon Chappie, a longtime Roll Call staffer and one of the top investigative reporters in Washington, D.C., died early Friday from complications of heart disease at age 40.

Chappie joined Roll Call in 1995 and quickly established himself as an expert in the Byzantine worlds of Congressional ethics rules and campaign finance. Over the next decade, he was ringside for a period of remarkable change and controversy on Capitol Hill, and Chappie’s investigations into the activities of then-Speaker Newt Gingrich (R-Ga.) and then-Reps. Bud Shuster (R-Pa.) and Jim Traficant (D-Ohio) helped drive official probes and sanctions of those lawmakers.

Over the years, Chappie developed a reputation for exacting standards in his reporting, putting accuracy and fairness foremost in his work. He broke new ground in the use of the Freedom of Information Act to pursue his reporting and, when the story called for it, applied himself tirelessly to the less-than-glamorous task of poring through mountains of documents to unearth critical information.

As a senior writer and investigations editor, a title he assumed in 2003, Chappie served as both a mentor and a source of inspiration to the dozens of young journalists who had the opportunity to work with him over the years.

Chappie’s professional successes came despite a daunting array of health problems. A hemophiliac, he contracted the human immunodeficiency virus from a routine blood transfusion in the early 1980s. Prior to 1986, about half of all individuals with hemophilia became infected with HIV through tainted blood products, according to the National Hemophilia Foundation.

In 1997, complications from that health crisis changed Chappie’s life dramatically when he began rapidly losing his sight, a process that left him almost completely blind by the end of the year. But rather than allowing that calamity to prevent him from continuing in the profession he loved, Chappie aggressively researched the technology needed to assist him in his reporting, becoming an authority in online databases and electronic document searches. He also worked in his Arlington, Va., community to lessen transportation and other access challenges for the disabled.

Born in Reading, Pa., in 1964, Chappie attended Daniel Boone High School in Birdsboro and went on to Pennsylvania State University, graduating in 1987 with a degree in journalism. During his time at Penn State, Chappie worked as a reporter for The Daily Collegian, the university’s newspaper.

During and shortly after his time at Penn State, Chappie did stints at several local papers, including the Lancaster Intelligencer and the Pottstown Mercury.

Chappie then moved to Washington, D.C., and went to work for the Bureau of National Affairs, serving as a reporter and editor on various daily and weekly news reports during his seven years there.

At Damon’s side when he passed away were Melissa Cohen, his girlfriend of more than nine years, his parents, Don and Janice Chappie of Reading, Pa., and his sister Connie Cammarano of Blandon, Pa.

At Roll Call, Damon will be remembered as a relentless fighter for what he believed was right and a man who reminded us that bringing truth to power should be a pre-eminent tenet of journalism.

Damon’s extraordinary character and courage were an inspiration to everyone at Roll Call. He was our friend, mentor, guide, collaborator, disgruntled co-worker, fellow conspirator, referee, sounding board and conscience, among other things. His loss has been felt deeply, and all those who work at Roll Call send our most heartfelt condolences to Melissa and the Chappie family.

Details of a memorial service to be held in Washington will be announced in the coming days.

In lieu of flowers, the Chappies ask that donations be made to the “Damon Chappie Memorial Award in Investigative Journalism,” a new fund being created to assist aspiring investigative journalists studying at Penn State University.

Penn State University

College of Communications

301 James Building

University Park, PA 16802

Please make a note on your donation that it is for the Damon Chappie Memorial Award.

Cert denied in two felon disenfranchisement cases

According to today's order list, the Supreme Court denied cert. in two felon disenfranchisement cases: Locke v. Farrakhan, No. 03-1597 (from the Ninth Circuit) and Muntaqim v. Coombe, No. 04-175 (from the Second Circuit). There is now a split in the circuits unresolved by the Supreme Court over whether plaintiffs may attack state felon disenfranchisement laws as having a disparate racial impact in violation of section 2 of the Voting Rights Act. There are still to be proceedings in both of these cases, along with an Eleventh Circuit case that is pending, so it is possible the Court will revisit the issue at a later date even in one of these cases. The Second Circuit case might be taken en banc.

One of the most interesting aspects of the Ninth Circuit case was a suggestion by Judge Kozinski in his dissent from that court's denial of en banc rehearing in which he suggested that allowing the section 2 claim to go forward could undermine the constitutionality of section 2 of the Act, because if the Act is viewed as reaching state felon disenfranchisement laws, it might exceed the powers of Congress under the 14th or 15th Amendments. I expect that this issue will resurface in these cases.

More from Lyle Dennison here. UPDATE: The AP story is here.

"President Bush Should Push Election Reforms"

Spencer Overton offers this oped in Newsday, with the following subhead: "New federal standards are needed to protect the integrity of the American voting system."

"Recalls Emerging as Political Weapons"

The Milwaukee Journal-Sentinel offers this report.

"Even With Campaign Finance Law, Money Talks Louder than Ever"

The New York Times offers this report.

Instant Runoff Voting News

If you care about this topic, check out Rob Richie's Nov. 5 newsletter from the Center for Voting and Democracy. The newsletter discusses some IRV-related news from last Tuesday.

"Campaign Financing Fight Will Resume"

The St. Louis Post-Dispatch offers this report.

Two from the Los Angeles Times

See Gifts Flow, as Does the Access, with the following subhead: "The governor's staff gets around limits on special-interest perks. The largess is routine."

Election Spending Put Millions in the Pockets of Private Firms, with the following subhead: "With an estimated total of $1.5 billion going into the costliest presidential election, media groups and political operatives reap financial benefits."

At Least One National Media Outlet Is Paying Attention to the Need for Fundamental Election Administration Reform

The New York Times offers Voting Problems in Ohio Set Off Alarm. A snippet: "Based on the Ohio experience, election law scholars advocate two types of broad reform: more uniformity within states - in registration lists, voting technologies and the distribution of voting machines - and replacing partisans with professionals in election administration."
UPDATE: See also this editorial, "New Standards for Elections."

The Coming Confirmation Wars

When I first started blogging, I wrote a great deal about judicial nominations and filibusters. I have largely ignored this issue during the election season, but with the news of the Chief Justice's health looking increasingly discouraging, we will soon be in for a possible confirmation war over the Chief Justice of the Supreme Court. Much of the news concerns whether Republican Senator Arlen Specter will be the new chair of the judicary commitee. It seemed like a sure thing, until Specter made some remarks about the difficulty of confirming an anti-abortion candidate. See this New York Times report. Now some conservatives don't want him to head the committee, and there are suggestions of a strong conservative as the new Chief Justice. The Wall Street Journal suggested Miguel Estrada, and Howard Bashman has suggested Fifth Circuit judge Edith Jones for Chief Justice, which would surely be a controversial move given her stance on abortion.

Specter may actually provide the only hope of breaking some of the deadlock over judicial confirmations. If he is not chair, Larry Solum may well be right that we face a downward spiral over the process, which could well lead to a change in the Senate filibuster rules and a breakdown of work at the Senate.

I won't be sending my blog posts on confirmation issues to the election law list because this is just not germane enough to the topic of election law. You can find such posts periodically on the blog here.

Two Fascinating Reports from the Campaign Finance Institute

See Party Indepedent Spending Soars. From the press release:

The political parties played a remarkably important role in the 2004 election, despite the fears of some party officials that the 2002 Bipartisan Campaign Reform Act's ban on soft money would leave them without enough money. According to CFI's Executive Director, Michael J. Malbin: "it looks as if early fears that BCRA would mean death for the parties, were highly exaggerated. The parties are alive and quite well."

One of the parties' major techniques was to spend money independently of their candidates in unlimited amounts. The Supreme Court reaffirmed the parties' right to do this when it overturned one of BCRA's provisions in the 2003 case of McConnell v. Federal Election Commission that otherwise upheld most of the new law. This spending by separate party staff is in addition to the limited money parties may spend in full coordination with candidates. All of the party money -- coordinated, independent and generic -- is funded by hard money raised under contribution limits specified in BCRA.

House Winners Average $1 Million for First Time; Senate Winners Up 47%. From the press release:

For the first time in history, it took an average of more than $1 million to win a seat in the House of Representatives in 2004. As of October 13, the eventual winners raised an average of $1,024,354. This was 18% more than the winners of 2002 (see Table 1.) (The figures used in this release, for all years, are based on final pre-election reports).

The increase in Senate fundraising was even more dramatic. The $6.5 million that the average winner raised was 47% more than the winners of 2002 and 57% more than the last time the same seats were up for election in 1998 (see Table 2).

"Election Experts Say More Voting Reform Needed"

Copley News Service offers this report. See also Like Clinging Chads, Kerry Faithful Hang On (Plain Dealer), The Election Monitoring Circus Leaves Town (commentary by Peyton Knight endorsing local control of elections); and Glitch Found in Ohio Counting (New York Times).

"At the End, Pro-Gop '527s' Outspent Their Counterparts"

The Washington Post offers this report. See also A Million Bucks Didn't Buy Much for Free-Spending Candidates and Election Spending Soars Despite Law.

"New Map Helps GOP Tighten Grip on Texas"

A.P. offers this report.

"Machine Error Gives Bush Extra Ohio Votes"

A.P. offers this report, which begins: "An error with an electronic voting system gave President Bush 3,893 extra votes in suburban Columbus, elections officials said." Imagine if this news came out in the middle of the process of counting absentee and provisional ballots in a razor thin race in Ohio between Bush and Kerry.

"Optical Scanners Slow Colo. Vote Count"

A.P. offers this report.

"Bush Wins Iowa To Claim Last Three States"

A.P. offers this report.

Three from the New York Times

Washington State's Governor's Race is Still Squeaking

Campaign Finance: Advocacy Groups Reflect on Role in Election

Report Says Problems Led to Skewing Survey Data (on exit polls)

Back to Obscurity

We in the election law world get a bit more than 15 minutes of fame. We now get fame every time there is an expected close election and potential uncertainty about the rules for voting: Florida 2000, the California recall, and now 2004. One national media person just e-mailed me in response to my Law.com commentary wondering whether anyone will pay attention to the big problems facing us before 2008, when the media will be back beating a path to our doors. And likely they will be wondering why nothing was done to fix the problems. (Did anyone else notice the incredulity of the CNN anchors that there might be delays in counting absentee ballots in Florida?)

My hope is that at least some of the national media will keep on this story. Only the glare of the spotlight will cajole Congress and state elections officials to make the changes that are desperately necessary.

"Commentary: Crisis Averted--This Time"

Businessweek offers these thoughts.

Symposium on Law and Democracy at George Washington University Nov. 15

I have posted the flyer for the event here. This should be a good one.

"The Billionaire's Boon"

The Wall Street Journal offered this editorial Wednesday, which begins: "Even before the polls closed yesterday, one big loser was already clear: the 2002 McCain-Feingold campaign finance "reform" that was supposed to cleanse our politics of 'big money.'"

A Tale of Two Top Two Primary Initiatives

In Washington State, voters approved a new primary system, Measure I-872. In California, Proposition 62 establishing the same type of primary system (top two candidates in primary go on to general election ballot, regardless of party registration) was defeated. Indeed, California voters approved a rival proposition put on by the Legislature, Prop. 60, intended to enshrine the partisan primary in California. (Proposition 60 could still be nullified by the California Supreme Court, because the Court is already receiving briefing on the question whether Proposition 60's placement on the ballot violated a California constiitutional provision requiring each amendment the Legislature proposes to the voters be submitted for a "separate vote.")

I was part of the legal team for Prop. 62, and believe that the measure would have survived a constitutional challenge in the courts. I also lament the fact that Prop. 62 was necessary in the first place. California voters approved a more modest version of Prop. 62, the "blanket primary," in 1998. But the Supreme Court, erroneously in my view, struck it down as violating the associational rights of political parties. We will now see if the Washington proposition is challenged, and, if so, how the courts react.

"Supremes May Consider Felon Voting Rights"

Legal Times offers this report. I have been predicting a cert. grant in the Locke case from the 9th Circuit, and possibly in the 2d Circuit case as well.

A Rosier View of the Election Process

In his post-election director's report, Electionline.org's Doug Chapin writes: "It is now abundantly clear that Election Day 2004 was a success. Record numbers of voters went to the polls, and while there were isolated problems across the nation, these problems were largely scattered and none of them provoked the kind of meltdown that made the headlines in November 2000." Responding to my Law.com commentary, Doug writes: "I’m not sure I’m as pessimistic as Rick, who argues that we “dodged a bullet” on Election Day, but I do agree that whatever work remains to be done has to include the same lawyers that so many people were ready to condemn in the weeks leading up to November 2." (He also has some kind words to say about the election law blogs.) His entire report is available here.

"New Voting Method Breaks Down"

The San Francisco Chronicle offers this report, which begins: "The computer software designed to tabulate the results of San Francisco's first election using ranked-choice voting malfunctioned Wednesday, and the outcome of contested races for district supervisor likely won't be available for at least two weeks, said Elections Director John Arntz. That leaves four of the seven races up in the air. Incumbent Supervisors Aaron Peskin, Michela Alioto-Pier and Tom Ammiano won their seats outright on election day with a majority of votes."

"N.C. Computer Loses More Than 4,500 Votes"

A.P. offers this report.

Is it Possible Kerry Lost Ohio Because of Punch Cards?

So alleges Greg Palast here. I have no idea of Palast's numbers are correct, and in particular whether he has lumped together both votes lost by the punch card machines and deliberate undervotes. I haven't seen any undervote figures yet for this election. I'd appreciate hearing from others who have some data to evaluate this kind of claim.
UPDATE: See also this article from the Cleveland Plain Dealer, which includes the following:

Kerry also had an opportunity in Ohio to follow the Al Gore playbook and demand a recount of some 92,672 discounted votes for president, including 12,953 in Cuyahoga County.

Some of these votes may have been accidental double-votes in the presidential race, and some voters may have deliberately cast no vote for president. But many of these are likely uncounted votes that come up blank because of "hanging chads," those infamous slips of paper on punch-card ballots.

But even though Ohio had 775,000 more voters Tuesday than it did four years ago, the number of discounted votes actually decreased slightly from 2000.

Blackwell's spokesman, Carlo LoParo, attributed the drop to an aggressive voter-education campaign, as well as heightened attention to the problems with punch-card ballots that were exposed in the Florida election in 2000.

UPDATE II: Dan Tokaji persuasively answers "no" to this question on his Equal Vote Blog

"Time to Fix Election System"

I have written this oped for Law.com and The Recorder. It begins:

It will be tempting for most Americans to believe that our system for running elections worked Tuesday. After all, John Kerry conceded defeat and George W. Bush no doubt will have a second term as President. But our election administration system is badly broken, and there's good reason to believe the problems won't be fixed in time for 2008, when the next election could create yet another Florida debacle.

We came much too close for comfort this time around. If the Ohio margin had been around 36,000 votes instead of around 136,000 (a small difference in percentage terms), we would have seen a battle royal over the 130,000+ provisional and absentee ballots that were yet to be processed and counted in the next week and a half. It would have been Florida all over again, only with more lawyers and controversy.

"Look at the Initiatives Money Can Buy"

Michael Hiltzik offers this column in the Business section of the Los Angeles Times.

"Litigate This! There Were More Lawyers Than Cheaters in Ohio"

The Weekly Standard offers this report.

"U.S. Voting System Pass Muster---For Now"

The Miami Herald offers this report.

"Campaign Reform"

The Washington Post offers this editorial.

"Paying for Campaigns: McCain Eyes Next Target"

Sen. John McCain offers this oped in USA Today.

"Despite Fears, Voters Face Few Problems, But Very Long Lines"

The Wall Street Journal offers this report.

"Lessons of the Ballot Box"

The New York Times offers this report, the most recent in its Making Votes Count editorial series. I have not always agreed with Adam Cohen, author of these editorials, but I commend his and the Times' efforts over the last year to focus public attention on issues of election administration.

"In Making His Decision on Ohio, Kerry Did the Math"

The New York Times offers this report. See also this Columbus Dispatch report and this Newsday report.

"In Ohio, The Electoral Mayhem That Didn't Happen"

The Christian Science Monitor offers this report.

"Ohio Election Laws in Doubt After Election Day Woes"

WCPO-TV offers this brief report.

"Bloggers Said to Blame for Bad Poll Info"

A.P. offers this report.

"The Next Campaign Will Have Armies of Lawyers Too"

A.P. offers this report.

Interesting Australian Broadcasting Corporation Interview with Dan Lowenstein on Legal Monitoring and the U.S. Election

The transcript is here.

"Lawyered Up: The Legal Nightmare that Never Materialized"

Dahlia Lithwick offers this Slate Jurisprudence column. I'll have more on this issue in the next few days.

Exit Polls

The national exit polls were off by 6% points (predicting Kerry with 51% to Bush's 48% and not the reverse). What happened to make these so wildly inaccurate? They were obviously off for Ohio and Florida as well, by 4 points each. I know that Voter News Service was phased out after mistakes in 2000. What happened now?
UPDATE: Michael McDonald of George Mason/Brookings writes (in a revised version of some comments sent to the election law listserv):

Having just arrived home from working the night at the exit poll service (Edison-Mitofsky), perhaps I can shed some light on this issue. First, it
was clear to us in the mid-afternoon that the exit polls were over-sampling
women, which was producing a pro-Democratic bias in the sample. Corrective
measures were taken, and we alerted our subscribers well before the polls
closed that the exit polls were showing the bias, which delayed clear Kerry
calls in states like PA and NH. Perhaps you heard the phrase "not enough
information" throughout the night, as we were waiting for actual vote
returns to confirm the exit polls.

How the exit polls are conducted, how they are weighted, and how they are
used by the networks on election night go well beyond simple sampling
methodology. Let's just examine the actual calling of the election. If a race is outside the margin of error AND it comports with
the best previous guess of the election outcome AND it comports with
previous vote shares for various offices in the sample precincts, then we
are able to call a race immediately when the polls close. If not, a
combination of exit poll results, past election results, and actual election
returns are used to make calls as data come in from the Associated Press.
The system worked as it should, and in no case did we make a call this
election that later had to be reversed.

The only issue was a delay in getting the calls out for a few states that
might have been called sooner if we had more confidence in the exit polls.
I think we can all agree it is more important to get it right than get it
quickly, and in some cases we held back calls even longer because we weren't
certain that something funny was going on with the data, like it did in FL
in 2000. In PA, for example, the Philly suburbs were late in reporting so
we didn't want to make a call without some hard numbers from those areas to
confirm our exit polling. For states like FL and OH this time, that were
close, there was not enough information in the exit polls to make a call in
those states when the polls closed, so we were going to have to wait for the
raw numbers came in anyway.

The real problem with the exit polls is that everybody wants to know the
results before the polls close. Once the first wave of polls went out to
the subscribers, it took about a half hour for our polls (and some fake
polls) to make it onto the internet. Warren Mitofsky continually warns
everyone not to trust the early exit polls because they are what they
are...polls, and they are subject to error (not just sampling error). Too
bad more people don't appreciate this point.

Kerry's Math and the Failures of Election Administration

Howard Bashman has linked to news coverage of developments in Ohio here and here. The picture in Ohio is clearer than it was last night, when I put up my last post. It appears that the number of outstanding provisional ballots is about the same as the current vote difference (both around 135,000). As Dan Lowenstein notes on the election law listserv, it is hard to see this math adding up to a Kerry victory, even assuming he gets a strong majority of the provisional votes. So either there are more provisional ballots out there that are not reported by the Ohio Secretary of State or Democrats have some other theory about how to win Ohio. But it is hard to see ways to shift a vote difference of such a large magnitude.

There's a broader lesson here as well. Our system of election administration failed last night. It looks like we will avoid a Florida-style debacle, but not because things worked right; it is because the vote margin is not close enough for litigation. We need to make major changes to the way we conduct presidential elections in the United States, beginning with a national registration and voter identification process, and an end to our use of partisan election officials. (More on that here.)

There's a good chance that the Bush-Kerry story ends very soon. It would be a mistake if the national media turned their attention away from the serious problems with our election system until just before the 2008 election.

No, This Is Not Over Just Yet.

Before trying to get a few hours sleep, some observations about where we are. In at least Ohio and in Iowa, and perhaps in some other states, the balloting is too close for a winner to be declared. With just a few percent of the vote to be counted in Ohio, Bush is in the lead by somewhere between 100,000 and 125,000 votes. (Iowa had some vote counting machine malfunctions, and other issues, which have led to a delay there in an exeedingly close race). But there are (according to various claims made on CNN) between 100,000 and 250,000 or more ballots to be counted in Ohio, including both provisional ballots and absentee ballots.

The chances that these provisional ballots can tip the balance is difficult to assess without more information about their total numbers as well as who cast these ballots. It may be, when we know more, that the margin would be simply too great for Kerry to make up.

Remember, HAVA guarantees a right to cast a provisional ballot and have it counted if the voter is eligible. Ohio has a process for counting these provisional ballots, but some of the procedures are open to question and, as the immediately prior post shows, open to litigation as well.

In the event that the results with provisional ballots (which the Ohio Sec. of State said on CNN won't be counted for 11 days) yield a much closer outcome, a recount is also possible. And, as I noted here, Ohio still has a number of punch card counties, making a recount messy. As that earlier post explains, Ohio uses a "two-corner" rule.

CNN is also reporting that Kerry legal teams will be going at least to Ohio and Iowa. Given the 11 day+ window for the counting of provisional ballots, and the speech by Sen. Edwards saying that the Democrats will fight to count every vote, I don't see how the election ends in fewer than 11+ days, unless the numbers from Ohio show that a provisional ballot count mathematically can't help Kerry.

UPDATE: Here is OSU's summary of recount procedures in Ohio.

Is this Over?

Although at least one network has called Ohio, it is not clear that things are over there. With 86% of precincts having reported CNN shows (as of 10 pm Pacific) Bush ahead by about 103,000 votes. But there are a very large number of provisional ballots (how large, I don't know) outstanding that have not been counted yet. If they have to be counted to determine the outcome of the election, there is already a lawsuit filed over the standards for counting provisional ballots, The lawsuit argues that the Ohio Secretary of State must set forth uniform standards for determining which provisional ballots will be counted. The authority: Bush v. Gore.
This may be over very soon. Then again, it may not.

Colorado's Amendment 36 Goes Down to Defeat

See here.

Worry About the Margin of Litigation?

There are still some disputes over balloting procedures right now in Ohio, Pennsylvania, and Florida. Of the three, the exit polls from Pennsylvania suggest this will be a comfortable win for Kerry. (The exit polls for Kerry suggest a two-point lead in both Ohio and Florida, which, if it held up, would be beyond the margin of litigation, it appears).

Given how things are shaping up elsewhere, we can likely reduce the possibility of post-election litigation delaying the result of the election to Ohio and Florida. But even if there remain questions about how to call one of those states, it still appears quite possible that the race could be called in the Electoral College for Kerry. See Will Saletan's analysis of what it would take at this point for a Bush victory.

Supreme Court Won't Take Up Third Circuit Ohio Challenger Case

The A.P. report is here. Not that a stay would matter now for this election.

"Judge Orders Officials to Provide Paper Ballots"

See this Columbus Dispatch report, which notes: "A federal judge has ordered the Franklin and Knox County boards of elections to provide paper ballots or other forms of voting to help process the people remaining in long lines.

Lawyers from the Franklin Board and Ohio Secretary of State J. Kenneth Blackwell vehemently objected and vowed an immediate appeal, saying any votes not cast on the regular electronic machines would be illegal."

Two Posts from the CNN Election blog

Long lines in Ohio

Voters wait to vote in Columbus, Ohio.
Posted: 7:55 p.m.
From John Mercurio, CNN Political Editor

Jennifer Palmieri, Kerry spokeswoman in Ohio, says there's a five-hour line being reported in Columbus and a seven-hour line at Kenyon College in Knox County, both Democratic strongholds. Cuyahoga County (Cleveland) has a three-hour line.Florida delays

Posted: 7:51 p.m.
From Wires.CNN

Some 50,000 or more absentee ballots that could make a difference in who wins a close election in Florida will not be counted until Thursday, election officials there say.

Election workers in Miami-Dade County apparently have been overwhelmed by the task of counting from 80,000 to 95,000 absentee ballots. The Miami-Dade County elections supervisor, Constance Kaplan, could promise Tuesday evening only that the ballots will be counted by noon Thursday.

ACLU Sues Over Late-Arriving Absentee Ballots in Florida

A.P. offers this report.

The polls close in Ohio in 25 minutes, and in Florida in 55 minutes

Any sense of the lines at the polling places now? I'd appreciate hearing reports via e-mail. UPDATE: Don't bother e-mailing. See Democrats ask court to make last-minute paper ballots available; Long lines of voters in Franklin, Knox counties; Bush makes Election Day visit.

Bush v. Gore Equal Protection Standards in Counting Provisional Ballots

OSU is reporting (6:29 pm entry) that a lawsuit has been filed to require the Ohio Secretary of State to promulgate uniform standards for counting provisional ballots lest he run afoul of equal protection standards of Bush v. Gore. With some leaked exit polls showing only a 1% difference between the candidates, this could potentially be a central suit in any post-election Ohio litigation.

Republicans File Suit in Pennsylvania Regarding How to Treat and Count Absentee Ballots

The complaint is here. If granted, it would delay the counting of absentee ballots in Philadephia until Friday.

Vacated Third Circuit Panel Issues Supplemental Opinion Explaining Its Decision

See here.

Sixth Circuit requires Ohio Sec. of State to Give Media Access to Polling Places

See here.

En Banc Third Circuit Reverses Earlier Order

The order is here. There is no opinion accompanying the order. The effect of this ruling: Ohio Republican challengers may now use the list of 35,000 potential invalid voter registrations in any challenges.

We will now see if the earlier Republican decision to serve as witnesses rather than challengers changes as a result of this ruling.

TRO Issued in Provisional Ballot/Absentee Ballot Case

Provisional ballots must be given to a voter in Ohio who requests one on grounds that he or she never received an absentee ballot. See this order. The order does not require that the state in fact count that ballot.

If in fact there is a four point lead for Kerry in Ohio (as suggested by these leaked exit poll numbers), we may be spared some nasty battles over which provisional ballots should be counted.

What to Watch For Today

A.P. and anecdotal reports say there are long lines at the polls in Ohio and elsewhere. Watch for what happens when polls close. Many states, including Ohio (as I discussed here) allow anyone in line at the time the polls close to vote, but no new people can join the line. How will that be policed?

Will there be such long lines at polls, particularly in urban, Democratic areas, that someone will run to court to seek an extension of poll hours?

If the race is very close, look for voting glitches and provisional ballots to be in the spotlight for a potential recount.

The Challengers are There in Ohio, But Apparently They Are Witnessing, Not Challenging

See here. So why the late-night mad push to get the district court orders overturned by the Sixth Circuit?

Yet Another Ohio Lawsuit

In White v. Blackwell (complaint) plaintiffs seek an order requiring Ohio elections officials to give absentee voters who did not get an absentee ballot a provisional ballot to cast at the polling place.

News Roundup

A.P. offers this report, which begins: "SIOUX FALLS, S.D. - A federal judge partially granted Democratic U.S. Sen. Tom Daschle's request to limit the activities of Republican poll watchers, after he accused his opponent and the GOP of intimidating American Indian voters."

A.P. also has this early report on minor polling place problems.

Howard Bashman links to major news stories on election day legal issues (including a number of now outdated stories on the Sixth Circuit Ohio rulings) here, here, and here. In addition to the stories from this morning that Howard links to, here are some more:

Professor John Nagle (Correction:This oped was written by Robert Nagel of the University of Colorado, not John Nagle of Notre Dame) has an oped in today's Wall Street Journal, Law Professors are Bad for Democracy (this link is not working for me; it may work for you---thanks to Steven Sholk for passing it along).

Law.com has a number of election-law related articles posted here.

The Hill offers House Readies for 269-269; GOP Ponders Rule Change in Case the Electoral College Ends Up Dead Even.

Marc Mauer and Roger Clegg debate felon disenfranchisement this week here at Legal Affairs.

The Boston Herald offers Most Hoped-for Outcome? A Winner.

The New York Sun offers Hail of Election Writs Descends on Ohio.

Doonesbury weighs in on the armies of lawyers here.

Jack Kemp writes Election Law Armistice.

Andrew Cohen writes Recount Redux?.

The Dallas Morning News offers With finish line in sight, anxiety grows about declaring a winner.

The Globe and Mail (Canada) offers In two key states, they're girding for 2000-style ballot chaos.

The Denver Post offers Election Chief Leaves State.

Electionline has set up this special page with frequent updates to news stories on voting issues. Findlaw has set up this page and Jurist has this page. Howard Bashman covers appellate developments here. This of course is in addition to the usual election law coverage here, and at other blogs: Ed Still's Votelaw, Dan Tokaji's Equal Vote, and OSU's site.

Justice Stevens' In-Chambers Opinion in Sixth Circuit Case

You can find it here.

Where Do We Stand With Ohio Challenges?

During the night, the Sixth Circuit, by a 2-1 vote (see opinion, concurrence, and dissent) reversed the trial court order preventing the G.O.P. from having challengers at Ohio polling places. A.P. reports here that the Supreme Court denied a stay of the Sixth Circuit's order.

Meanwhile, the Third Circuit refused to stay a district court order preventing the RNC and its agents from using the compiled list of 35,000 potential challenges. And as noted a few posts below this one, the Ohio Supreme Court ruled that the Republicans are allowed one challenger per precinct, more than the one challenger per polling place as a state trial court had ordered.

So now, with polls opening, we have some certainty. Bottom line: Republican challengers, up to one per precinct, may challenge at the polls in Ohio. But those from the RNC or its agents (whatever that means) may not do so on the basis of the earlier compiled voting list.

Happy election day, and thanks to OSU for the links.

Late Night Judicial Developments

A.P. reports here that a federal district judge "dismissed an attempt by Republicans to force the elections supervisor in heavily Democratic Broward County to update a list of early voters, which elections officials said would be done regardless."

I hear rumors of a 6th Circuit ruling in the Ohio case, but nothing confirmed yet. UPDATE: I have it on good authority that there has in fact been no ruling in the 6th Circuit case.

What the Heck is Going on in Ohio?

After two federal district courts issued orders earlier today enjoining Republican challengers at the Ohio polls, Republicans indicated they would appeal to the Sixth Circuit. I have not seen any papers besides a notice of appeal posted on the OSU site. If there are emergency motions to be heard, this has to happen in a matter of hours. (The attorney general has said he won't seek an immediate stay of the district court orders, but that won't stop the Republican intervenors from seeking a stay).

At the same time, as indicated in a post a few below this one, Republicans have gone to the Ohio Supreme Court asking for permission to put multiple challengers in polling places.

And still today, a judge in New Jersey issued an order blocking Republicans from challenging voters in Ohio under a dedades-old order (see here). The article reports that Republicans will appeal, presumably to the Third Circuit.

So what are we waiting for now out of Ohio? Possible orders from the Third Circuit, the Sixth Circuit, and the Ohio Supreme Court on challenges. Barring any orders from these courts changing the status quo, it appears that Republican challengers will be unable to challenge voters at Ohio polls tomorrow.

I am all for pre-election litigation (rather than post-election litigation) to clear up the rules for election day. But this is cutting it rather close. In the event one of these appellate court acts (presumably within the next few hours), how will the word on the rules get out to the polling officials? And, worse yet, what if the appellate courts issue conflicting orders?
UPDATE: In response to the Sixth Circuit's request for a brief, the Ohio attorney general has now asked the Sixth Circuit to stay the Ohio district court orders. See here.
UPDATE II: Thanks to a reader for passsing along a link to this order of the Ohio Supreme Court. It grants mandamus, restoring the right of Republicans to one challenger per precinct. The opinion notes "This order is based solely on this court’s interpretation of state statutes." (Read: No Article II problem here.) So now the action shifts to the Third and Sixth Circuits. Unless these courts act, it still appears there will be no Republican challengers in Ohio.

Kerry Has Big Money Advantage in Use of Potential Recount Funds

See this report by the Center for Public Integrity. From their press release:

Sen. John F. Kerry may have a $24.8 million advantage over President George W. Bush in pursuing any recounts that result from Tuesday's election, according to the campaigns' most recent financial filings.

Under Federal Election Commission rules, both candidates are allowed to use remaining funds from their primary election committees to conduct recount activities, which in Kerry's case amounts to just under $45 million. That compares to just more than $16 million left over in the Bush/Cheney primary election committee's coffers.

Another Lawsuit in Ohio

This one is brought by Republican challengers and the Ohio Attorney General to the Ohio Supreme Court. Petitioners seek an order directed to the Ohio Secretary of State to rescind existing rules about the number of challengers per voting location and to allow more challengers per location. The documents are here.

These final lawsuits, including the appeals to the Sixth Circuit in separate litigation raising related questions, are surely taxing the judiciary in Ohio to the limit. We could have even more confusion on election day if either the Sixth Circuit or the Ohio Supreme Court change the rules some time late this evening.

"The Case That Could Have Altered 'Bush v. Gore'"

Tony Mauro writes this fascinating article (registration required) in Legal Times on a 1912 recently discovered (by Green Bag editor Ross Davies) in-chambers opinion by two Justices stemming from an electoral college dispute between supporters of Teddy Roosevelt and Howard Taft. A snippet:

[Justices] Pitney and Van Devanter agreed the dispute over the electors raised a federal question. But in words that could resonate soon, they went on to say, "As courts are reluctant to interfere with the ordinary course of elections, whether primary or otherwise, as the rights asserted are not clear, but doubtful, and as the injury and public inconvenience which would result from a supersedeas or any like order, if eventually the judgment of the state court should be affirmed or the writ of error dismissed, would equal the injury which would otherwise ensue, we think no supersedeas or kindred order should be granted."
The terminology is dated, and the phrasing would have benefited from an editor, but the essence of the decision is this: In the midst of an election dispute, if ruling in favor of one side is likely to cause the same "injury" as ruling for the other side, the Supreme Court should just keep out of the dispute until the state courts sort things out.

You can find the opinion itself posted here on the Green Bag's website.

My NPR Commentary on the Need for Universal Voter Registration and Voter I.D.

You can listen here.

New Issue of Election Law Journal Now Out

Just in time for the election, you can find the table of contents for Volume 3, Issue 4 of the Election Law Journal here. This issue includes the lead article by John Fortier and Norm Ornstein, "If Terrorists Attacked Our Presidential Elections."

Look for ELJ 4:1 in January, featuring a major article on redistricting by Michael Carvin and Louis Fisher, a preview of Clingman v. Beaver by Richard Briffault, and a book review by Andrew Geddis.

Authors interested in submitting an article for peer review should look at these instructions.

Overton on Provisional Ballots

You can access a five-page analysis, "How Conflicts Over Poll Challengers and Provisional Ballots May Impact the 2004 Election" by Spencer Overton on his web page.

"A Real Democracy Deficit"

Elizabeth Vallet offers this oped (English translation), which originally appeared in Le Figaro.

The Absence of the Chief Justice from the Bench and the Potential for Post-Election Litigation

A.P. reports here that the Chief Justice was not on the bench today, as he had originally planned to be, following cancer surgery. On NPR, Nina Totenberg was asked how, if at all, this could affect any post-election litigation that might make it to the Supreme Court. I don't have a transcript of Totenberg's remarks, but she indicated a belief that the Chief Justice could participate in deciding any such case from home if necessary.

"Rebuffing G.O.P., 2 Judges Bar Challengers at Polls in Ohio"

The New York Times offers this report. The article quotes A.P. (as I did a few posts below) stating that Republicans planned to appeal to the Sixth Circuit. It is hard to see how the Sixth Circuit gets what it needs to decide whether to overturn these orders before tomorrow's balloting. UPDATE: OSU has posted the defendants' motion for stay and plaintiffs' response in the Cincinnati case. Ned Foley also comments here on a potential ambiguity in the other TRO issued today.

Wang on Nevada HAVA Issues

See here.

Doug Kmiec on Bush v. Gore and this Election

See this commentary posted at National Review Online. A snippet: "If the presidential election of 2004 is indeed close, federal and state judges should stay their hand absent intentional discrimination contrary to the Constitution or a disregard of directly applicable federal or state election law. To think that Bush v. Gore asks more is to indulge a cynical or partisan reappraisal of precedent."

Two from Law.com

In the National Law Journal, Marcia Coyle writes Close Vote to Turn on 'Bush v. Gore'?

The New York Law Journal offers N.Y. Judge Says Speech Limits on Judicial Candidates Deprive Voters of Information.

On Day-to-Day

I should be on NPR's Day-to-Day today with a commentary on two fundamental changes we need to avoid a permanent threat of post-election litigation: universal voter registration with a voter i.d. card and elimination of partisan election administration, beginning with Secretaries of State.

"Even in voting debacle, overturn chances slim"

The St. Petersburg Times offers this report.

Republicans State They Will Appeal to Sixth Circuit on Ohio Challengers TRO

See this A.P. report. See also this order issued by a second judge in Ohio.
I'm off to tape a radio commentary. More in a few hours.

Breaking News from Ohio: Federal Court Limits Challengers at Ohio Polls

The order granting the TRO is here. A snippet from a discussion of the legal analysis:

Ohio argues that in light of the huge numbers of newly registered voters and reports of fraudulent registration, a system allowing private challengers to question voter eligibility is a critical process. The Supreme Court has instructed that in pursuing important state interests, if there are other, reasonable ways to achieve those interests with a lesser burden on constitutionally protected activity “a State may not choose the way of greater interference. If it acts at all, it must choose less drastic means.” Dunn v. Blumstein, 405 U.S. 330, 343 (1972) (quoting Shelton v. Tucker, 364 U.S. 479, 488 (1960) (internal quotations marks omitted).
In this case, the portion of § 3505.20 allowing private challengers to challenge the eligibility of a person offering to vote at a precinct is not narrowly tailored to serve Ohio’s compelling interest in preventing voter fraud. Under the statute, bipartisan election judges and any elector then lawfully in the polling place may challenge the eligibility of any person offering to vote at that precinct. Election judges are seasoned, experienced workers in the electoral process. Defendant Burke testified that he and his co-chair of the Hamilton County Board of Elections were quite concerned when they saw that so many challengers had registered to be present on election day and were likewise concerned with the impact of several hundred lawyers attempting to take over the challenge process from the poll workers who are experienced in conducting that process. Defendant Director of the Hamilton County Board of Elections John Williams also testified that he is concerned about the election, understands that there could be confusion on Election Day with so many challengers, and trusts the poll workers to do a good job. Further, Defendant Blackwell’s recommendation that the challengers be removed from the polls strongly undermines any argument that having these challengers at the polls is narrowly tailored to serve a compelling state interest. Defendant Blackwell’s recommendation highlights the fact that the chief elections official of Ohio believes that fair elections can occur without the challenge process.9 The conflict between Secretary of State Blackwell and Attorney General Petro indicates that even the two top officials responsible for enforcement of election laws disagree over the manner in which to proceed. How can the average election official or inexperienced challenger be expected to understand the challenge process if the two top election officials cannot? Further, there are other protections in place to prevent election fraud. As registrations are
received, the Board of Elections processes them and works to ensure that they are not fraudulent.
The Board of Elections may conduct investigations, summon witnesses, and take testimony under oath regarding the registration of any voter. Ohio Rev. Code § 3503.25. Defendant Burke testified that the Board had, in fact, received registration cards of dubious authenticity, and the suspect registration cards either did not result in voter registrations or were registered and then cancelled. Further, any qualified elector of the county may challenge the right to vote of any
registered elector to vote and the challenge will be considered by the Board of Elections at a hearing.10 Ohio Rev. Code § 3503.24.
In this situation, the presence and actions of challengers serves the same interest as that of the election judges except that the presence and actions of the former poses an unacceptable risk of impeding the work of the election judges. Since the election judges are the individuals who are knowledgeable and experienced in the process of identifying potential ineligible voters, asking them the relevant questions, and making determinations, disruption of this system by over 1100 lawyers who have no experience in the process cannot be said to be narrowly tailored to serve a compelling state interest in preventing voter fraud.
Indeed, because the evidence does not indicate that the presence of additional challengers would serve Ohio’s interest in preventing voter fraud better than would the system of election judges without the additional challengers, the practice as applied here could not withstand even intermediate scrutiny. Orr v. Orr, 440 U.S. 268, 282 (1979) (explaining that to survive intermediate scrutiny, practice must further state’s interest better than would its absence.) Because the Court concludes that Plaintiffs have shown a substantial likelihood of success on the merits on the ground that the application of Ohio’s statute allowing challengers at polling places is unconstitutional, the Court declines to reach the other grounds for relief raised by Plaintiffs.