Why I Don't Expect There to Be a Chief Justice Thomas

In an earlier post which has gotten some attention, I explained why I thought rational Democrats could support Justice Scalia as a replacement for the Chief Justice should he retire. With conservative circles now supporting Justice Thomas as a possible Rehnquist replacement, I thought I would write my views on why I don't expect that to happen.

Much of what I wrote about why Democrats could support Justice Scalia (including ethics issues) could apply equally to Justice Thomas (though Justice Thomas's opinions are less caustic than Justice Scalia's). But I see two salient differences with a Thomas nomination:

(1) Any confirmation hearing for Justice Thomas would provide Democrats (and the country's cable media, which loves salacious stories) to reinvograte the investigation into the Anita Hill story. David Brock, who wrote The Real Anita Hill and whose evidence was relied upon by supporters of Justice Thomas, has claimed now that his book is made up of lies. Timothy Noah of Slate has noted, in reviewing Brock's newer book, Blinded by the Right, "the unique difficulty posed by any narrative that begins, 'I'm a liar, here's my tale.'" Whether Brock was lying then or is lying now, the point is that there would now be wall-to-wall media coverage of the issue again. Why would a rational Bush administration do this, when, if James Taranto is right, Republicans get a "free pass" on a Rehnquist replacement?

(2) Justice Thomas is much younger than Justice Scalia. The risks to Democrats of a chief lasting that much longer are greater, and therefore it is worth fighting harder against Thomas.

If Democrats choose to oppose a Thomas nomination, they would be smart to attack Justice Thomas's ideology, not his competence (as the incoming Senate minority leader recently did). I agree with Jack Balkin's post arguing that "I have no reason to think that Thomas is appreciably better or worse in terms of his lawyerly skills than many other Justices who have sat on the Supreme Court." The issue is one of ideology.

UPDATE: Larry Solum responds here. I think Larry underestimates the media sensationalism that would come with a renewed look at the Thomas-Hill controversy. In 1991, when Justice Thomas was confirmed, there were many fewer cable news stations, no legal oriented cable television shows (such as "The Abrams Report" and "On the Record"), virtually no internet (and no blogosphere). The revelations would hardly be old news for a public that likely forgot what happened at the hearings back in 1991. Think of the countless hours spent on O.J., Kobe, Scott Peterson, etc. and you would have an idea what I envision.

California Appellate Court Rules Members of City Council Have to Listen Before Voting

The Los Angeles Times offers Listen Up, Politiicans: It's Ears Before Ayes, which begins: "Striking a blow for anyone who has ever been rudely treated by government officials, a state appellate court ruled Thursday that city council members must actually listen when their constituents make official appeals before them." You can find the court ruling here. Here is a snippet:

We do not presume to tell the city council how it must conduct itself as a legislative body. Here, however, the city council was sitting in a quasi-judicial role, adjudicating the administrative appeal of constituents. A fundamental principle of due process is “he who decides must hear.” (Vollstedt v. City of Stockton (1990) 220 Cal.App.3d 265, 276.) The inattentiveness of council members during the hearing prevented the council from satisfying that principle. (Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, 1024 [“due process requires fair adjudicators in administrative tribunals”]; Henderling v. Carleson (1974) 36 Cal.App.3d 561, 566 [takes as a given that administrative decision maker listens at hearing] disapproved on another point by Frink v. Prod (1982) 31 Cal.3d 166, 180; Chalfin v. Chalfin (1953) 121 Cal.App.2d 229, 233 [fact finder must listen to the evidence before making a decision].) Sitting as “judges” in the appeal, the council was obligated to pay attention as is the obligation of sitting members of the judiciary. (Accord, In re Grossman (1972) 24 Cal.App.3d 624, 629 [“Members of the bar have the right to expect and demand courteous treatment by judges . . .”]; Model Code of Judicial Conduct Canon 3 (B)(4) (American Bar Association 2000) [“A judge shall be patient, dignified and courteous to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity . . .”].) The council’s distraction with a multitude of other things during the hearing is especially troubling because it was reversing its own zoning administrator who took great care to reach his decision. It is not our province to insist that the council members consider every word of every witness. Good judgment and common sense are entitled to prevail. (Vollstedt v. City of Stockton, supra, 220 Cal.App.3d at p. 276.) Here, however, the tape shows the council cannot be said to have made a reasoned decision based upon hearing all the evidence and argument, which is the essence of sound decision making and to which LSHS was entitled as a matter of due process. Accordingly, we reverse and remand.

"2 challenges call for Frye to be named S.D. mayor"

The San Diego Union-Tribune offers this report. See also this Los Angeles Times report.

"Candidates Want Second Ohio Recount"

A.P. offers this report.

"Gregoire certified as next governor; Rossi won't quit; he cites 3,500 'mystery voters'"

The Seattle Post-Intelligencer offers this report. Howard Bashman has collected more coverage here.

"Democrat Declared Wash. Governor-Elect"

A.P. offer this report.

"Better Democracy: Nation Should Move to Uniform Standards"

The San Diego Union-Tribune offers this editorial.

No Reply Briefs Yet in Texas Redistricting Case

The reply briefs, originally due today, are now due Jan. 14.

Major Washington Post Analysis of 2004 Campaign Finance

See On Nov. 2, GOP Got More Bang For Its Billion, Analysis Shows. Mickey Kaus comments on the story here (third item down), asking, "Did McCain-Feingold Actually Work?"

"Not just a rich man's game"

The Denver Post offers this editorial, which begins: "It turns out having your own money isn't a silver bullet in politics after all. And you don't have to ask just Pete Coors."

Law.com article on 2d Circuit Felon Disenfranchisement case

See here.

"Ohio Judge to Remain on Vote Challenge"

A.P. offers this report.

"Republican Calls for Revote in Wash. Race"

A.P. offers this report.

"Counties opposing GOP call to reopen vote counts"

The Seattle Times offers this report.

L.A. Times Editorial on Washington State Election Controversy

See here.

"Lobbying Tab Is $1.1 Billion for Half a Year"

The Los Angeles Times offers this report, with the subhead: "Special interest groups report expenditures for the first half of 2004. Chamber of Commerce and AMA top the list, with $39 million."

Harwood on McCain-Feingold

In his Wall Street Journal column, John Harwood writes that "Twenty-first century Democrats can compete financially with Republicans."

Puerto Rico Election Dispute Apparently Over

The A.P. reports here that the losing gubernatorial candidate has announced he will not challenge the certification of the vote.

"Media Role in Recount Questioned"

This article appeared originally in the Los Angeles Times on the role of the media in requesting a recount of mayoral votes in San Diego.

"G.O.P. Weighs Next Step After Recount"

The Seattle Times offers this report.

"Ohio Recount Gives Smaller Margin to Bush"

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

Montana Supreme Court Decides Election Law Issue that Determines the Outcome of State Legislative Race, and Balance in the State Legislature

See Ruling Gives Democrats a Grip on Montana in the New York Times.

Second Circuit Grants Rehearing En Banc in Felon Disenfranchisement Case

Howard Bashman has the details here.

American Prospect Special Section on Election Reform

See the special section from the Jan. 5 issue here (paid subscription required). Thanks to Alec Ewald for the link.

Ohio lawmakers want to make it more difficult to get a recount

See this Gannett News Service report.

"Redistrict Process Divides Even GOP"

The Sacramento Bee offers this report.

"City Attorney to Issue Opinion on Frye Votes"

KFMB offers this report.

"Mayoral Fight Echoes Case in Bay Area"

The San Diego Union-Tribune offers this report.

"Critics: FPPC Lacks Teeth"

The Sacramento Bee offers this report, with the following subhead: "Changing laws and lack of funds hinder enforcement by the election watchdog agency, some say."

NYT Criticizes EAC for Its Electronic Voting Task Force

See this editorial.

"Recounts and Partisan Bickering Tire Washington Voters"

The New York Times offers this report.

Program on Campaign Finance After BCRA

I received the following announcement via e-mail:

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Catching Up Department

While I was gone, there were the following major election law developments and press coverage:

Washington State The Washington State Supreme Court issued this unanimous opinion allowing the counting of disputed ballots in King County, leading to the apparent victory of Democratic gubernatorial candidate Christine Gregoire over Republican candidate Dino Rossi. More litigation is possible, including a Bush v. Gore issue related to possible different treatment of ballots in different counties. See this Seattle Times report. If this claim is made, I believe it will mark the first time Republicans will have used Bush v. Gore in post-2000 litigation in an attempt to change the outcome of an election. Howard Bashman has collected earlier coverage here. David Kravitz has some interesting observations here.

New York Times on Ohio Election Issues On Friday, the New York Times ran this extensive article, "Voting Problems in Ohio Spur Call for Overhaul."

Interim Report of SSRC Panel Finds No Evidence of Vote Fraud in 2004 Presidential Election You can find the report here and the press release here.

Will California Democrats Try to Use Schwarzenegger's Ballot Measure Tactics Against Him? On Saturday, the Los Angeles Times offered this front-page article, "Ballot Measures Aimed at Gov.; Liberals and Democratic lawmakers talk of beating Schwarzenegger at his own game by putting measures he has blocked before voters."

Puerto Rico case to the Supreme Court? Howard Bashman reports that the First Circuit has denied rehearing en banc in one of the Puerto Rico elections cases.

Cert petition in Fourth Circuit Voting Rights Act claim Plaintiffs have filed a cert. petition in Hall v. Virginia, a Fourth Circuit case raising an important question about coalitional districts. Ed Still has posted it here.

Merger The Alliance for Better Campaigns is merging with the Campaign Legal Center. See this press release.

Campaign Finance from the Washington Post The newspaper offers Tribal Money Linked to GOP Fundraising and College Republicans' Fundraising Criticized.

Regular Blogging Will Resume Dec. 27

I may post once in a while in the interim.

"Judge Blocks Count of New Wash. Ballots"

A.P. offers this report.

"More Uncounted Ballots Found in Wash."

A.P. offers this report.

My Op-Ed on the San Diego Mayoral Controversy

The San Diego Union Tribune has posted my oped, "The Mayoral Election: Off to Court We Likely Go." Two snippets:

"Frye has a reasonable but by no means certain chance of prevailing in such a contest, but both candidates and the courts stand to lose legitimacy regardless of who becomes mayor."

"In a number of ways, the coming legal contest is a lower-stakes version of Bush v. Gore, the Florida litigation that ended the 2000 presidential election. Again, Democrats are asking for the intent of the voters to prevail and for courts to require elections officials to 'count every vote.' And Republicans are stressing compliance with the technical rules. They argue that fairness in elections requires that counting be done following the rules as written."

"Former Secretary of State Pushes for New Vote"

The Seattle Times offers this report, which begins: "Former Secretary of State Ralph Munro, a key supporter of Republican Dino Rossi during the contentious recounts in Washington's race for governor, says it may be time to toss out all of the votes and do the election over."

"Audit Says Shelley Mishandled Vote Funds"

The Los Angeles Times offers this front-page report. The Sacramento Bee offers this report. Dan Walter's column is Auditor confirms Shelley's money miscues, but will Legislature act?.

"G.O.P. Seeks to Block Newly Found Ballots in Washington State"

The New York Times offers this report.

"Advocacy Groups Spent Record Amount on 2004 Election"

The New York Times offers this report.

"Ohio Justice Throws Out Election Challenge"

A.P. offers this report. UPDATE: You can find the opinion here.

"N.C. Officials Resign Over Voting Problems"

A.P. offers this report. Thanks to Richard Winger for the tip.

California State Auditor Issues Report on California Secretary of State's HAVA Implementation

The report is here. "California Insider" Dan Weintraub calls the report "not pretty." See also this A.P. report.

Electionline.org Issues New Report on 2004 Election

The very interesting report has an executive summary on page 3 of the pdf.

Editorials on Election Controversies

The New York Times offers Puerto Rico's Disputed Election. The Los Angeles Times offers San Diego Soap Opera. The San Diego Union-Tribune offers Clouded Office.

"Washington Verifying 573 New Ballots"

A.P. offers this report.

New FEC Chair

A.P. reports on the selection of Democrat Scott Thomas as chair and Michael Toner as vice chair.

"Cheating Suspected in Vote"

The Washington Times offers this report, which begins: "Republicans in Washington state suspect Democrats, with 500 patronage jobs at risk, are cheating in what is now the unprecedented third counting of the 2,883,341 ballots cast in the Nov. 2 election for governor." Is it now not going to be possible to conduct any recount without allegations of fraud?

"New Mexico Recount in Doubt"

U.P.I. offers this analysis.

"Ban on fed donations in state races eyed"

The Des Moines Register offers this report, which begins: "Gov. Tom Vilsack, who says he's not running again, inserted himself into the 2006 governor's race Wednesday by proposing that Iowa bar candidates from using money on statewide races that they raised while they were federal officials."

"Legislation Seeks to End Anonymous Political Ads"

The Sacramento Bee offers this report.

San Diego Update

See stories in the San Diego Union-Tribune, A.P., L.A. Times, NY Times.

"Ohio Recount Resembles Florida in 2000"

A.P. offers this report.

Breaking News: Puerto Rico Election Case Decided by First Circuit

You can find the opinion here. The court has vacated the federal court judgment and returned the case to the commonwealth courts. Judge Torruella makes some interesting points about Bush v. Gore and the public's reaction to it in his concurrence. UPDATE: AP now offers this report.

"John Hart Ely and the Problem of Gerrymandering: The Lion in Winter"

Pam Karlan has posted this draft on SSRN.

"The Will of the Majority?"

Matthew Soberg Shugart and Royce Carroll offer this San Diego Union-Tribune oped on the San Diego mayor's race. I'll be writing more about the race soon.

"Conspiracy Theories Abound in Wash. Race"

A.P. offers this report.

Federal District Court Holds Selective Use of Punch Card Ballots in Ohio Does Not Violate the Equal Protection Clause or Create a Voting Rights Act Violation

You can find the court's opinion here, with appendices I, II, and III. A.P.'s story is here. The ruling puts it at odds with other federal district court decisions considering this issue.

Call for Papers on Voting Rights Project

I just received this call for papers from UC Berkeley's Civil Rights Project. It solicits proposals for research papers addressing issues surrounding the reauthorization of the Voting Rights Act in 2007.

"Campbell Denied Use of ‘Speech or Debate’ Defense in Bastien Case"

Roll Call offers this breaking news report (paid subscription required), which begins: "A federal appeals court has rejected Sen. Ben Nighthorse Campbell’s (R-Colo.) argument that the Constitution shields lawmakers from suits brought under the Congressional Accountability Act, becoming the third and highest court to rule against the immunity defense. The decision, handed down late Friday by the 10th U.S. Circuit Court of Appeals in Denver, means that the age discrimination case brought by former Campbell employee Rita Bastien in 2001 can proceed to trial. It also sets up a potential Supreme Court fight over the parameters of the first landmark statute to apply labor and workplace laws to Congress. " The decision from the Tenth Circuit begins: "Our Constitution's Speech or Debate Clause states that "for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place." U.S. Const. art. I, § 6, ¶ 1. The issue before us is whether this Clause precludes Plaintiff Rita Bastien's employment-discrimination claim brought under the Congressional Accountability Act of 1995 (the CAA). Senator Ben Nighthorse Campbell fired Plaintiff from her position on his staff. Her duties included meeting with the public to obtain information used by the Senator for both constituent services and his legislative agenda. We hold that suit is not barred because the claim does not question the conduct of official Senate legislative business by Senator Campbell or his aides. We do not address, however, whether certain evidence may be inadmissible in this litigation because it concerns such conduct."

"Republicans Seek Complaint Against Minority Leader"

The Hill offers this report, which begins: A group of House Republican lawmakers, stewing over a Democratic ethics complaint filed against Majority Leader Tom DeLay (R-Texas), is pressing for the GOP to file a reciprocal complaint against Minority Leader Nancy Pelosi (D-Calif.) for violating campaign-finance law. That would shatter what’s left of the ethics truce party leaders forged in the late ’90s and could lead Republicans and Democrats to remilitarize the ethics battlefield with tit-for-tat complaints. Some Republican lawmakers are exhorting their colleagues to back away from such a war."

"Will Legislature Pick Governor? It Could Happen"

The Seattle Times offers this report. See also this Washington Post report.

San Diego Mayoral Saga Continues

The Los Angeles Times story is here. The San Diego Union-Tribune story is here. I'll be on KPBS Radio's "These Days" this morning at around 9:20 am PST talking about the issues. You can find a stream here.

Major Analysis of Ohio Vote in the Washington Post

The newpaper offers this front-page story, "Several Factors Contributed to 'Lost' Voters in Ohio." Don't miss it.

"Lawmaker Seeks Inquiry into Ohio Vote"

The New York Times offers this report.

"Judge's Decision Cost Write-In Candidate for Mayor"

The Los Angeles Times offers this news update, which begins: "SAN DIEGO — A review of disputed ballots showed today that write-in candidate Councilwoman Donna Frye would have beaten Mayor Dick Murphy except for a judge's decision refusing to order the counting of "empty oval" ballots. In the official results, Murphy beat Frye by 2,108 ballots out of 455,694 cast and was sworn in last week for a second term. But a review requested and paid for by five media organizations and two Frye supporters showed 4,180 ballots in which voters wrote in Frye's name but did not darken the oval on the line next to her name." See also this Union-Tribune update.

Breaking News: Washington State Supreme Court Declines to Order Uniform Manual Recount Standards in Gubernatorial Recount Case

You can find the unanimous opinion here. An early A.P. story is here. The court declined a request to set forth uniform standards for the manual recount of votes in the close gubernatorial race, with the court expressly rejecting an equal protection claim made under the state constitution. ("Petitioners suggest in their reply brief that a claimed disparity in signature-checking standards implicates equal protection concerns under the privileges and immunities clause of our state constitution, Const. art. I, § 19, but they claim no discriminatory intent.") It is unclear from this opinion if a similar argument was raised under the U.S. equal protection clause, relying on Bush v. Gore. If so, the lack of discriminatory intent should be irrelevant, at least under my reading of the case.

This ruling appears to have no effect on the decision of Kings County to count an additional 500+ votes, which appears more likely than not to swing the election to the Democratic candidate. (See my earlier post.)

Faithless Elector in Minnesota

Politicalwire.com has the details here.

"N.M. Judge Refuses To Intervene in Presidential Recount Decision"

The Albuquerque Journal offers this report.

Very Interesting Turn in Washington State Gubernatorial Recount Saga

The Seattle Times offers Error discovery could give Gregoire election (see also this related report). Apparently, elections officials in Democratic-leaning Kings County had improperly disqualified 561 absentee ballots because the computer system did not contain these voters' signatures.

Reports on First Circuit Oral Arguments in Puerto Rico Elections Case

Howard Bashman has collected the cases here. The NY Times article referenced there incorrectly refers to Rick Pildes as "Richard Piles."

"Disputed-Ballot Review Begins"

The San Diego Union-Tribune offers this report, which discusses, among other things, the role of the media in requesting the San Diego mayoral recount.

"Faithless Elector Watch:A desperate, last-ditch opportunity for Kerry"

Timothy Noah offers these thoughts on Slate.

"Mayoral Election Recount Could Begin Tuesday"

The San Diego Union-Tribune offers this news update.

"The Election Ran Smoothly, Didn't It?"

Jesse Jackson, Jr., offers these thoughts on TomPaine.com.

"Electing to Vote Early"

The Los Angeles Times offers this editorial.

"Election Doubts Provoke Protest"

The Olympian offers this report.

"Denying the Right to Vote is a Crime"

Chijioge Nwogu offers this Newsday oped.

"Ohio Presidential Vote Recount Set to Begin"

The Cleveland Plain Dealer offers this report.

"For Some Race Remains far from Over"

The Los Angeles Times offers this report.

Interested in Hearing This Morning's Oral Arguments in the Puerto Rico Election Cases Being Argued in the First Circuit?

See here.

"The 527 Phenomenon: Big Bucks For Upstarts"

Eliza Newlin Carney offers this National Journal column.

"Kerry Lawyer Seeks Ohio Ballot Inspection"

A.P. offers this report.

"Dems to Study Possible Primary Changes"

A.P. offers this report.

"Doubts Persist About Election Results"

A.P. offers this report.

"Puerto Rico Is Caught In Throes of Recount; Two Courts in Combat Over Island's X Factor"

This Washingon Post article is a good introduction to the issues in the Puerto Rico election dispute. You can find the First Circuit and other related filings here.

"Odd vote results point to mix-ups at some precincts"

The Cleveland Plain Dealer offers this report, which begins: " The election results tabulated from the two precincts at Benedictine High School seemed off-kilter from the start. Had more than a third of the 1,000-plus voters at the East Side school really embraced the ideals of Michael Peroutka, the candidate of the Constitution Party, and Libertarian Party candidate Michael Badnarik? Could 215 people have voted for Peroutka in a precinct that delivered 299 votes for John Kerry? Did Badnarik win 164 votes to Kerry's 334 in the precinct that was in the same room?"

"Recount Continues in Wash. Gov's Race"

A.P. offers this report.

"Reforming Reform"

Ryan Sager offers these thoughts on BCRA and political parties.

Preclearance Issues with Arizona's Proposition 200

See this A.P. report.

"It's Inauguration Time Again, And Access Still Has Its Price"

The New York Times offers this report.

"Judge Hears Testimony of Improper Voting by Poll Workers in a Westchester Race"

The New York Times offers this report.

"Mayor Supports Full Recount; Says 'Let's Get on with It'"

The San Diego Union-Tribune offers this report.

Professors' Amicus Brief in Texas Redistricting Case

Find it here.

"Recount Continues in Wash. Gov's Race"

A.P. offers this report.

Questions About the Role of the media in the San Diego Election Dispute

Chuck Bell writes:

This morning's LA Times and San Diego Union-Tribune report that the Times has filed a recount request on behalf of Donna Frye, and the U-T - which filed a public records request to inspect ballots (which are not public records) - is contemplating the same course of action.

Your blog contained discussion during the Presidential campaign about media activity involving potential campaign contributions and issue advocacy (Sinclair Broadcasting's abortive decision to replay an anti-Kerry documentary and Pappas Broadcasting's decision to donate broadcast time to Republican and Democrat central committees). The LA Times and U-T's direct involvement in recounts appears to be a new chapter in this saga.

First, these newspapers' decisions may have campaign finance ramifications - does a media exception apply if the expenditures are considered campaign related? Second, and a wider question than whether this activity is "reportable" or subject to limits or prohibitions (City of San Diego bars corporate expenditures on behalf of municipal candidates), this activity is quite different from post-December 13, 2000 media review of the Florida vote controversy, as the outcome of the media's recount could lead to other litigation that could affect the ultimate disposition of the mayoral election controversy.

The impact of this unprecedented media involvement in a live recount may be mitigated by the separate request Fred Woocher has made on behalf of Frye's supporters. However, it certainly raises a new issue to discuss concerning media involvement in campaigns: when the media becomes not a reporter or commentator but an actor. In one sense, it isn't new and shouldn't be particularly shocking: CBS/Rather/60 Minutes' involvement in the Bush National Guard story; the NY Times' admission about its agreement with CBS - ultimately abrogated - to drop the "missing weapons" story two days before the election; a long history of broadcast editorializing - all now in the gray zone of media's direct involvement in politics.

Puerto Rico Election Case

On Monday, the First Circuit will hear oral arguments in Boston in the Puerto Rico election case. (See this announcement (via How Appealing). Among the heavy hitters in this litigation are Harvard law's Charles Fried and Gibson Dunn's Ted Olson. The briefs are too large for me to upload, but they raise a fascinating Bush v. Gore isssue, as well as issues of abstention. If I get a chance to read the briefs more closely later, I'll post some analysis.

Bob Bauer Weighs in on Nonpartisan Election Administration

See here.

Another Brief in the Texas Re-Redistricting Case

You can find Ellen Richards' very interesting amicus brief here.

Poll on Florida Voting Problems

A.P. offers Poll: Fla. Voters had No Voting Problems. The headline is a bit misleading. See this snippet: " While 75 percent of voters described themselves as "very confident" or "somewhat confident" their vote was correctly counted, the degree of satisfaction varied between winners and losers, according to assistant poll director Clay Richards. He said 95 percent of the Republicans quizzed said they were very or somewhat confident in the result, compared with only 58 percent of Democrats. President Bush carried the state with 52 percent of the vote over Sen. John Kerry."

"New York's Electoral Mess"

The New York Times offers this editorial.

"Court Clears Path for Murphy"

The San Diego Union-Tribune offers this report, with the subhead: "Justices rules suit filed too late; swearing in set for today." I predict further post-certification litigation in the San Diego mayoral election controversy.

"Candidates Officially Request Ohio Recount"

A.P. offers this report. In related news, the Los Angeles Times offers Activists Hold Forum Spotlighting Voting Issues in Presidential Election.

Simultaneous Opening Briefs Filed in Texas Re-Redistricting Cases on Remand

You can find the Jackson Plaintiffs/Democratic Intervenors brief here (see also the accompanying declaration) and the state's brief here. (I will post other briefs if I receive them electronically.) Simultaneous reply briefs are due later this month.

The question is what Vieth means, given Justice Kennedy's concurrence. The Jackson/Democratic Party brief says that upon careful examination of the opinions in Vieth, it has uncovered a standard: five Justices (the four dissenters plus Kennedy) agree that an unconstitutional political gerrymander occurs when three conditions are met:

1. That the map-drawing decisions made in at least some districts cannot be explained as springing from efforts to obey legal mandates or to follow traditional nonpartisan districting principles like compactness, contiguity, respect for political subdivisions and natural barriers, or other neutral state traditions;
2. That the departures from traditional districting principles can be explained as driven by an agenda of achieving partisan advantage because they serve to maximize the impact of votes cast for the favored party’s candidates or minimize the impact of votes cast for the disfavored party’s candidates; and
3. That the departures from traditional districting principles in the service of a partisan agenda were intentional.

The divergence between Justice Kennedy and the plurality is one of temperament, not reasoning. While the plurality would hold that political-gerrymandering claims are inherently nonjusticiable, Justice Kennedy would "err on the side of caution" by allowing for the possibility of federal court intervention at some future time should a consensus eventually emerge on "suitable standards with which to measure the burden a gerrymander imposes on [a] representational right." That time is not now; the ink is barely dry on Vieth, and no such consensus can be said to have emerged.

Breaking News: Court of Appeal Rejects Request for Revote in San Diego Write-in Case

The Court of Appeal's opinion in McKinney v. Superior Court reaches the right result in my opinion in holding (along with a statutory holding) that laches barred the argument that the San Diego clerk never should have allowed write-in votes in the San Diego mayoral election:

There is no doubt that in this case any arguable violation of the charter was discoverable pre-election. Now, McKinney’s answer to this point is that he, like most voters, was not aware of the city charter provision which (again we do not decide the issue) precluded any write-in candidates. But that is an untenable rule. It means that voters can close their eyes and not check an election for irregularities -- here, for example, apparent with the mailing of the sample ballot -- and wait to see if the ineligible candidate has an effect on the outcome. (See Soules v. Kauaians Nukolii Campaign Committee (9th Cir. 1988) 849 F.2d 1176, 1182 [applying laches in Hawaiian case where appellants sought federal overturning of state election because of the importance of requiring pre-election challenges to prevent “sandbagging on the part of wily plaintiffs”].) To adopt McKinney’s position would seriously destabilize California election law, which has the advantage of specifically encouraging pre-election challenges precisely in order to avoid this sort of instability.

Why Rational Democrats Could Support Justice Scalia for Chief Justice

The Washington Post reports here that new Democratic minority leader Harry Reid has said he could support Justice Scalia as a potential replacement for Chief Justice Rehnquist (if and when the Chief retires) because Scalia is "one smart guy." (Reid opposes Justice Thomas for Chief on grounds he has been an "embarassment" on the Court.) The support for Scalia (tempered by a view that he must overcome "ethics" objections) has reportedly angered some Democrats.

In looking at the disputes over judicial nominations, I have always believed that the actions of both Democrats and Republicans have been pretty rational, given political constraints and ideals. Thus, I have written how it makes sense for Democrats to selectively filibuster a small group of judicial candidates who may be painted (fairly or unfairly) as ideological extremists, and it makes sense for Republicans to threaten (but not follow through on) threats to end the filibuster rules through a majority vote (the so-called "nuclear" option). I think a focus on rational behavior helps to explain Reid's stance on Scalia as well.

Why would it be rational to support Scalia?
(1) Scalia would likely make a weak chief Justice. Scalia may be "one smart guy", but he is not a consensus builder. Far more than anyone else on the Court, his opinions (particularly his dissents) are caustic and nasty. He likely would not be effective in managing a cohesive conservative court.
(2) Scalia, in his 60s, would have a shorter tenure as Chief Justice than a younger Chief who could have influence for a longer period, such as Justice Thomas or an outsider appointed to be chief.
(3) Support for Scalia would allow Democrats to counter the charge that they would not vote for an anti-abortion candidate or a conservative, and they could make such a vote without changing the balance on this issue on the Court. Having approved a Chief Justice Scalia, Democrats would then have additional strength in the court of public opinion to oppose an ideological nominee to fill Scalia's old seat.
(4) To the extent Democrats could highlight Scalia's "ethics problems," so much the better for them.
UPDATE: For thinking along similar lines, see the posts here and here.

"Legislators Discuss Campaign 'Loophole'"

The Charleston Gazette (WV) offers this report, which begins: "A legislative committee on campaign finance reform debated ways Monday to rein in contributions to political advocacy groups like the one that heavily influenced this year’s Supreme Court race. Sen. Jon Blair Hunter, D-Monongalia, said Monday there’s not much point to pursuing the committee’s ongoing study of publicly financed campaigns as long as there are no limits on contributions to the so-called 527 groups. 'To have a loophole this broad, we might as well not do anything,' Hunter said. 'It defeats the whole purpose.'"

"Governor Race Could Wind Up in Court"

The Seattle Post-Intelligencer offers this report.

The Election Conspiracy Theories Continue to Blossom

See here for the latest.

"As Questions Keep Coming, Ohio Certifies Its Vote Count"

The New York Times offers this report. In related news, the Washington Post offers DNC to Investigate Ohio Voting Irregularities.

"Top Vote Getter? We May Never Truly Know"

The Seattle Times offers this report.

"Conspiracy Theories on Ohio Refuse to Die"

The Cleveland Plain Dealer offers this report.

"Bad Write-in Law"

The Long Beach Press Telegram offers this editorial, with the subhead: "Contested San Diego outcome was unnecessary."

"Half of Pa.'s Provisional Ballots Tossed"

Knight-Ridder offers this report.

"Election Day Not Disaster, But Problems Remain"

Eliza Newlin Carney offers this column in the National Journal.

"Those 527 Fund-Raisers Prove Resilient"

The Wall Street Journal offers this report, with the following subhead: "Republicans, Slow Off the Blocks, Now May Decide Not to Act to Get Rid of Them." Thanks to Steven Sholk for the link.

"Political Mailing List Debate Drags On"

Forbes.com offers this report, which begins: The ensuing controversy surrounding a mailing list of 592 conservative activists given free of charge--and in violation of election law--to President Bush's campaign will likely land in court next week."

"Challenges Likely as Ohio Certifies Vote"

A.P. offers this report. See also this letter that some House Democrats have sent to the Ohio Secretary of State regarding conduct of the presidential election in Ohio.

"US Election Funds Smash Records"

The BBC offers this report.

Press Conference on 527s

I received the following announcement via e-mail:

EXPERTS TO DISCUSS 527 IMPACT ON 2004 ELECTIONS

Washington, December 1, 2004 - The Center for Public Integrity and the Center for the Study of Elections and Democracy at Brigham Young University will hold a joint news conference and discussion on Thursday, December 16 at 10 a.m. in the Holeman Lounge of the National Press Club.

The subject of the news conference will be: The 527 phenomenon: Its impact on the 2004 election.

Specific issues to be addressed are:
* What impact did 527s have on the 2004 election
* How effective were the messages of the 527s
* How did the 2004 election differ from previous elections in terms of 527s
* What is the future of 527s

The Center for Public Integrity will present an analysis of the 2003-04 election cycle, including the final reports filed in early December. The findings are based on the Center's database, which includes all four years in which 527s have been required to file.

The Center for the Study of Elections and Democracy will present findings from its research on the 2004 election, focusing on the strategies of the 527 organizations and the effectiveness of their messages and advertising.

Participants will be Charles Lewis, executive director, and Aron Pilhofer, database editor, of the Center for Public Integrity; and David Magleby, senior research fellow at the Center for the Study of Elections and Democracy.

For more information about the media conference, contact Ann Pincus at (202) 481-1234 or Nathan Kommers at (202) 481-1221; to reach Dr. Magleby, call Adam Segal at (202) 422-4673.

"Fundraising Records Raised By Both Major Political Parties"

The Washington Post offers this report, with the following subhead: "Democrats Got More Money Than GOP for 1st Time Since '70s." The article references a Public Citizen press release that you can access here. See also this New York Times report.

Two on the San Diego Mess

The San Diego Union-Tribune offers Suit challenging Frye's candidacy to be argued in Santa Ana court today and Frye in position to score a victory whether she fights on or bows out.

"Final count in Ohio gives Kerry 18,000 more votes"

The Cleveland Plain Dealer offers this report.

Very Few Undervotes in Nevada

The latest issue of Election Administration Reports notes that Nevada had only 38 statewide undervotes for President. It attributes the extraordinarily small number to a "None of the Candidates" option, which garnered 3,688 vote (0.44 percent of all voters).

No doubt, the None of the Candidates option is part of the story of low undervotes, but there may be another. Nevada used electronic voting this election. It may be that electronic voting itself spurs people to choose a candidate who otherwise would have deliberately abstained from voting. This is an understudied subject that needs more attention.

Consider the statistics Michael McDonald gathered on undervoting in the California recall election on the question whether or not Governor Davis should be recalled (paper available here, table on page 5):
Self-reports of non-voting through exit polls: 2.6%
Statewide undervote rate: 4.7%
Punch card county undervote rate: 7.2%
Optical scan undervote rate: 2.8%
DRE: 1.4%

Consider especially the contrast on this question in the undervote rate between Alameda County, using touch screens (0.74%) with L.A. County, using punch cards (just under 9%). These statistics don't prove that electronic voting causes deliberate undervoters to vote, but it is worth further examination. (On the legal problems created by punch card voting disparities, see my earlier analysis.)

If, indeed, the method of voting by touch screen encourages people to choose a candidate who otherwise would abstain, should anything be done about it?

"Campaign-Finance Reform: A Public Choice Perspective

Burton A. Abrams and Russell F. Settle have published this article in the September 2004 issue of Public Choice (subscription required for article access, but you can get the abstract by clicking on the above link).

San Diego update

See here.

It is Looking More Likely that Gov. Schwarzenegger Will Call for a Special Election to Approve a Ballot Measure Creating a Non-partisan Redistricting Commission

See these front page reports in the LA Times and the Sacramento Bee. Other ballot measures may appear on a special election ballot as well. If this plan goes forward, watch for a pitched battle over an isue I've recently written about: the legality and constitutionality of a new FPPC regulation limiting contributions to candidate-controlled ballot measure campaigns. This would be the first election in which the Gov. would be limited to contributions of $21,200. In the last election, he had many six-figure contributions to his controlled ballot measure committee, including at least three contributors who gave at least $750,000 each.

"Election Reform Plan Calls for A Season of the Vote"

The St. Petersburg Times offers this report. A snippet: "Florida's elections supervisors want to effectively replace Election Day with a period of voting that would last a week or so. If they can persuade skeptical lawmakers to go along, neighborhood voting sites would be a thing of the past."

"Frist Political Fund Can't Cover Bank Loan"

The Washington Post offers this report, which begins: "A campaign fund controlled by Senate Majority Leader Bill Frist (R-Tenn.) has lost almost $460,000 in stock market investments since 2000 and now does not have enough to cover a sizable bank loan, according to federal election records and the manager of the Frist account."

"Election Day Hangovers Remain Across USA"

USA Today offers this report, with the following subhead: "Computer glitch, dead heat, recounts and court rulings play part in undecided races."

"Ohio Counties End Official Ballot Counts"

A.P. offers this report.

San Diego County Glitch Responsible for Temporary Rise of Prop. 72

Dan Weintraub has the story here.

California Re-Redistricting in 2006?

Don't miss this fascinating column by Dan Walters.

Does the California Constitution Require Counting the Non-Bubbled Write-in Votes for Frye in the San Diego Litigation?

I discuss this point here on the election law listserv. UPDATE: I've got more analysis of the constitutional provision posted here.

Tokaji News

Dan Tokaji's excellent "Equal Vote" blog has moved here. Change your bookmarks accordingly. He has also published this Findlaw column, "The 2008 Election: Could It Be a Repeat of 2000?"

"Court Halts Mayor Vote Certification"

The San Diego Union-Tribune offers this report, which begins: "A state appeals court blocked the certification of the vote in the San Diego mayor's race yesterday, breathing new life into a suit contesting the legality of the election. The ruling came just before the county registrar of voters was due to finalize the count in Mayor Dick Murphy's apparent re-election and added more uncertainty to a race with no clear winner four weeks after the polls closed. And in another volley in the litigation over the Nov. 2 election, a federal judge in San Diego declined to issue a court order in a separate suit seeking to nullify the election." The Los Angeles Times reports that the federal judge's decision was based on laches.

The Expected Pitched Battle Over Confirming a New Supreme Court Justice

The Hill offers this report.

No Celebrating Cert Denial in Baum Write-In Case

The San Francisco Examiner reports (fourth item):

The U.S. Supreme Court has declined to take up the case of a San Francisco woman denied ballot access after 229 voters failed to connect the arrow pointing to her name in a write-in contest in March.

Green Party congressional candidate Terry Baum lost legal battles in state court to have her name placed on the ballot, and ran as a write-in in the general election. "This isn't a case where we applaud the outcome," said Matt Dorsey, a spokesman for the City Attorney. "Terry Baum was a very effective advocate for why state policymakers may want to consider reforming California election law."

"If It Helps Lawmakers, It Will Pass"

The Milwaukee Journal-Sentinel columnists Spivak and Bice offer this column on changes Congress is considering to McCain-Feingold to allow federal officeholders to use certain funds in state races.

"Timeout for Term Limits":

The Los Angeles Times offers this editorial, with the following subhead: "The first real academic study of the effect of term limits on California confirms the obvious: Term limits made the Legislature worse, not better." The study the editorial refers to is Bruce E. Cain and Thad Kousser, Adapting to Term Limits: Recent Experiences and New Directions.

"Surprise Shift in Prop. 72 Vote Tally"

The Los Angeles Times offers this report, with the following subhead: "Late ballots appear to make measure requiring health insurance coverage a winner. But a clerical error may be responsible, officials say."

"Judge Tosses Challenge to Nev. Bush Win"

A.P. offers this report.

"Kerry Team Seeks to Join Fight to Get Ohio County to Recount"

The Washington Post offers this report.

Election Reform Conference

I received the following invitation via e-mail:

A Report to the Nation on America's Election Process

December 7, 2004

The Century Foundation, Common Cause, and the Leadership Conference on Civil Rights invite you to bring your questions and concerns regarding the November 2 elections to an event entitled “Voting in 2004: A Report to the Nation on America’s Election Process.” RSVP for this important event now by clicking on the following link.

www.commoncause.org/RSVPVotingin2004

The event is open to the public, the press, Members of Congress and their staff and the academic community. Statements will be made by Representative Steny Hoyer (D-MD), http://www.hoyer.house.gov) Representative Bob Ney (R-OH) (http://ney.house.gov/) and Representative Rush Holt (D-NJ) (http://holt.house.gov/)

We will begin at 8:30 a.m. and continue to 4:30 p.m. in Washington, DC in the Dirksen Senate Office Building in Room G50. We will hear testimony from experts who were on the ground on November 2. Expert panels will explore issues and problems that occurred in the following areas.

* Absentee Ballots, Military and Overseas Voting
* Provisional Ballots
* Polling Place Operations and Poll Workers
* Voting Machines
* Voter Registration
* Voter Suppression and Intimidation

All panels will be followed by question and answer sessions.

Let us know right away if you plan on coming to the event by filling out the aforementioned RSVP form:

www.commoncause.org/RSVPVotingin2004.

Invited and participating individuals and organizations include:

People for the American Way, The Brennan Center for Justice, Rock the Vote, Demos, the National Association of Secretaries of State, election officials, Verified Voting, the Lawyers Committee for Civil Rights, Electionline.org, the American Civil Liberties Union, American Families United, The Advancement Project, and experts from the Massachusetts Institute of Technology, Stanford University, George Washington University School of Law, American University and Johns Hopkins University.

"Voting Errors Tallied Nationwide"

The Boston Globe offers this extensive report. Here is a snippet: "In the month since the election, serious instances of voting machine problems or human errors in ballot counts have been documented in at least a dozen states, each involving from scores of ballots to as many as 12,000 votes, as in a North Carolina county. On Election Day, or in later reconciling tallies of ballots and voters, local officials discovered problems and corrected final counts. In some cases, the changes altered the outcomes of local races. But in North Carolina, the problems were so serious that the state may hold a rare second vote, redoing a contest for state agriculture commissioner decided by fewer votes than the number of ballots lost."