"Governor Seeks Outside Donors for Campaigns"

This LA Times article from Saturday had the following subhead: "Lucrative new sources from across the U.S. would help fund a fight over California's voting districts and pension system, he says."

Some Responses to My Posts on the California Constitutional Problems with Linking Term Limits and Redistricting

In response to this post and this post, Matthew Shugart emails:

The whole idea of trying to prevent this sort of packaging troubles me. I fully understand the logic of the "single-subject" requirement, like not tying the sale of state property to the regulation of the primary-election process, for example. But, first of all, are term limits and redistricting really "separate subjects"? Both concern how we elect legislators. Term limits advocates claimed term limits would increase competitiveness, and proponents of non-partisan redistricting claim the same. The former has been shown via academic research largely to have failed, though in the presence of districts drawn by nonpartisans, it might very well work out as intended. This question would seem to be separable from the specific length of the term limits, which might have to be adjusted (as a matter of political practicality) in order to bring about the overall public good of more competitiveness. Now I can see that taking back one component (i.e. lengthening term limits) to get the other is a logroll, and the purpose of the single-subject requirement is essentially to prevent logrolls.

There just is a real problem with that logic. If you can't link A and B, often you get neither. You just get the status quo. I won't give you A if you won't give me B.

I have the same trouble with item vetoes. I think--though I am unaware of empirical confirmation--that item vetoes do not really make the executive more powerful (as is often assumed). I think they simply make the status quo safer.

I am no fan of direct democracy, but please tell me we have not so restrained it judicially that the status quo trumps any chance politically for a potentially rather large majority to approve a package of reforms to the election process.

John Gear writes:

Michigan is suffering terribly from the twin scourges of expert partisan redistricting and stiff term limits. Because the first is so bad, the reaction was the second -- so now we have the worst of all worlds ... the winners of virtually all races are decided in primaries where, 9 times out of 10, the most extreme candidate wins.

(The exception proves the rule: pro-choice GOP Rep. Joe Schwartz, new member of Congress, "won" his primary with 28% of the vote, with all six "Stop Joe" opponents foolishly splitting the vote rather than deferring to one another. A perfect case for the use of instant runoff voting, but an example of how dysfunctional the system is ... the winner was opposed by 72% of his own party but, thanks to bulletproof gerrymandering, was unstoppable once nominated.)

The state overall leans D but the US House delegation is 9-6 R-D, and both state houses are R dominated, tribute to the skill of the gerrymander artists.

However, for just one example of the bizarre consequences, the Speaker of the House is a 34 year old with two years legislative experience. The folks in Lansing are chafing under term limits, but they are finding that they are still insanely popular (with the Rs finding that the monster they created was easier to unleash when the Ds had long been in control than it is to get back under control).

My thinking has been that there is only one subject here: competitive elections. Term limits were a ham-handed and wrongheaded approach -- but they were devised in response to a very real problem (totally uncompetitive elections that verge on fraudulent).

I would (and am) arguing that the only way to get people to agree on backing off from term limits is to ensure that we don't get a return to the status quo of soviet-style elections with 99% incumbent reelection rates, and that is only possible by taking control of redistricting away from the legislature. They may not be one subject in a law school text but they are absolutely a single subject (competitiveness in elections) in the real world.

Thanks for writing!

More on Separate Vote Requirement

Following up on this post, a few readers have e-mailed to ask whether (or argue against the idea that) the separate vote requirement would bar two legislative constitutional amendments, subject to separate votes by the people, but that each provides that neither amendment becomes effective unless they both become effective. (This apparently was how Propositions 57 and 58 were structured. There was no separate vote challenge then, and in any case the analysis might be different because 57 was not a constitutional amendment.)

There's no law on this (in California, at least), but I think an argument can be made that such linking still violates the separate vote requirement (at least as I understand the requirement). If the separate vote requirement's purpose (or one of its purposes) is to prevent the Legislature from adding sweeteners or packaging "good" amendments to get "bad" amendments passed, then a court could say that the linking strategy is an impermissible end run around the requirement. It is true that the "bad" measure would be more salient, because it is presented to voters separately. But it still can coerce voters to vote for bad to get good. For example, suppose I love redistricting reform but hate loosening term limits. Or I love loosening term limits but hate redistricting reform. There are likely to be lots of Republicans in category 1 and lots of Democrats in category 2. The ads for the two amendments will say vote yes on both, and someone who really supports one may feel coerced to vote for the other, the very evil the separate vote requirement was arguably included to prevent.

Reminder: ELJ Call for Papers---Optional Proposals Due Monday

Details here.

"Reed Sides With GOP Before Court"

The Seattle Times offers this report.

EMILY's List Reply Now Available

You can find it here.

Greene on Bush v. Gore

Abner Greene has posted Is There a First Amendment Defense for Bush v. Gore? (forthcoming, Notre Dame Law Review) on SSRN. The abstract:

The Supreme Court's ruling in Bush v. Gore attracted an enormous outpouring of critical response. But there is a defense for the merits holding of Bush v. Gore that has not received adequate attention. In a well-established line of free speech and press cases, the Court has insisted that state law carefully circumscribe the discretion of local officials to pass on applications for parade permits and the like. The "Lovell doctrine," named after the first case in this line, permits facial challenges to such laws, to ward off the risk of administrative bias that might be too difficult to show on a case by case basis. Similarly, the Florida statutory provisions asking local county officials to determine "voter intent" when manually recounting ballots may be thought to vest too much discretion in officials who are highly subject to the tugs of partisan political connections. Just as rights of political participation are at stake in the Lovell doctrine cases, so were they at stake in the 2000 presidential election, whether seen as the rights of the candidates or the voters. This Article develops the analogy between the Lovell doctrine and the Florida election law that the Court confronted in Bush v. Gore. It provides a detailed account of the Lovell line cases and a critique of the scholarship in the area. It builds a prima facie case for importing the Lovell doctrine into the election law setting, and responds to several objections to so doing. It also responds to two challenges raised by Justice Stevens in his Bush v. Gore dissent, both involving the possibility that objective ballot counting rules could have been set and applied in a disinterested fashion by state judges. If we accept the application of this long line of First Amendment caselaw to the setting of ballot counting, then we can read Bush v. Gore as a narrow but powerful precedent, limiting the power that States may delegate to local officials to determine what counts as a vote, but not extending to other, mechanical differences that might exist within a State.

"U.S. Begins Shelley Probe"

The Sacramento Bee offers this report.

Linking Redistricting and Loosening of Term Limits

The Sacramento Bee reports that a member of the California state assembly is proposing to place redistricting reform and a loosening of term limits together as a package to be adopted by voters in a special election in California in 2005.

I have serious doubts that combining both proposals in a single proposed constitutional amendment is permissible under the California Constitution. Although legislatively proposed constitutional amendments are not covered by the "single subject" rule, they are covered by the "separate vote" requirement. I looked into that requirement (including its original 1849 adoption) as a member of the Proposition 62 legal team challenging the placement on the ballot of Proposition 60, which was to enshrine party primaries andto require the state to sell certain surplus property. I believe the separate vote requirement bars the legislature from placing two distinct constitutional changes (particularly measures that would amend different provisions of the California Constitution) in a single proposed amendment. Although Proposition 62 was defeated at the polls, litigation over Proposition 60 and the separate vote requirement is pending at the California Supreme Court.

On the topic of redistricting reform, this PPIC Survey (see question 30, page 24) includes the following question:

30. A legislative redistricting reform measure that requires
an independent panel of three retired judges, instead of
the state legislature and governor, to adopt a new
redistricting plan. Would you vote yes or no?
44% yes
41 no
15 don't know

Finally, Joshua Spivak offers this oped in the Los Angeles Daily Journal (paid subscription required) supporting redistricting reform.

Austin Chronicle Report on Oral Argument in Texas Redistricting Case

See here.

Useful Page for FEC Litigation

I have complained for some time about how difficult it is to use the FEC's website. I was therefore happy to learn of this page on the site, "Selected Recent and Ongoing Litigation." Good to know.

Briefs in the San Diego Election Contest

I have received both challengers' briefs. The Henderson brief is too large to post.
Here is the Woocher brief. I will post other briefs if I receive them and they are not too large.

"GOP Says It Found 300 Illegal Votes"

The Seattle Times offers this report.

"Let Them Vote"

Roll Call offers this short article (paid subscription required) on the latest efforts to get D.C. residents the right to vote for a congressional representative.

"Shelley Insists He Won't Resign"

The Sacramento Bee offers this report.

In the Election Law Mailbag

I have just received a copy of Julian Pleasants, Hanging Chads: The Inside Story of the 2000 Presidential Recount in Florida. The book contains interviews with a number of the central actors in the Florida controversy, including Judges Nikki Clark and Terry Lewis.

I also just received Thad Kousser, Term Limits and the Dismantling of State Legislative Professionalism (2005).

Finally, I received a copy of Anthony B. Sanders, In Defense of Vote Buying: How "Nader Traders" Can Defeat Rent Seeking, 26 Hamline Journal of Public Law and Policy 43 (2004).

All three of these studies will go in my (already overloaded!) "to read" pile.

"House Approves Ban on Bounty System for Voter Registration"

A.P. offers this report, which begins: " A move to prohibit per-head payments to workers who register voters or get them to the polls was passed Wednesday by the South Dakota House after a debate that split mostly along party lines." Thanks to a reader for passing this link along.

FEC Brief in Emily's List Case

You can find it here.

"Look Who’s Not Coming to Washington: Qualified Candidates Shut Out by Big Money"

U.S. PIRG has issued this report. From the executive summary:

Large contributions made by a small fraction of Americans unduly influence who runs for office and who wins elections in the United States. Without personal wealth or access to networks of wealthy contributors, many qualified and credible candidates are locked out of contention for federal office—often before voters have the opportunity to register their preferences or hear competing points of view.

Money was as important to candidates in the most recent congressional elections as it has ever been. Our analysis of Federal Election Commission (FEC) campaign finance data for the 2004 election cycle reveals the following:

- Ninety-one (91) percent of 2004 congressional primary candidates who raised the most money won their races.

- Sixty-five (65) percent of all congressional primary elections were uncontested. Anecdotal evidence suggests the role of money in campaigns plays a significant part in discouraging candidates from running.

- Sixty-three (63) percent of 2004 congressional primary candidates’ individual donations came in contributions of at least $1,000—from just 0.08 percent of the voting-age population.

Moreover, according to the Federal Election Commission, campaign fundraising continues to increase at a rate greater than inflation. Winning congressional candidates raised nearly 50 percent more in the 2004 cycle than in a comparable period during the 2002 cycle.

In order to put a human face on this data, we surveyed federal candidates who dropped out of races, lost primaries, or lost general elections. The candidates profiled in this report cite money as a primary reason why they lost or pulled out of their races entirely. Many of the unsuccessful candidates profiled are at least as credible and qualified as the eventual winners. What they lack is something altogether different—personal wealth, access to networks of wealthy donors, or policy positions that appeal to large contributors.

"Lott, McCain Prepare Bill to Crack Down on 527s"

Roll Call offers this report (paid subscription required).

"Taking 'Modern Art' Out of California's Political Map"

Garry South offers this LA Times commentary supporting the establishment of a nonpartisan redistricting commission in California.

Coverage of Shelley Fallout

See stories in the Los Angeles Times; thse San Francisco Chronicle; the the Sacramento Bee; and the Contra Costa Times. See also this Dan Walters' column. Links via Rough & Tumble, a very useful website collecting links to political stories out of California.

"Swampy weed suggests whole state order recover open trust"

Lost in translation at the Washington Secretary of State's website.

"Court Ruling Favors Spano in Challenge Over Votes"

The New York Times offers this report, which begins: "In a decision that favored Nicholas A. Spano's re-election bid to the State Senate, an appellate court ruled on Tuesday that only 45 of about 550 contested ballots in the still-undecided race should be counted. Before the ruling, Mr. Spano led by 58 votes." See also this report. Thanks to Richard Winger for the links.

Campaign Legal Center Brief in Emily's List Case

You can find the amicus brief supporting the FEC's allocation rules for 527s here.

Foley: "When to Redo an Election?"

Ned Foley weighs in on the question here, with particular relevance for one aspect of the Washington state controversy.

"State Personnel Board report slams Shelley"

The Sacramento Bee offers this report. The audit report referred to in the article is here.

Tokaji on Democratic Party Election Administration Reform Proposals

See here.

"A Top Dem Suggests Shelley Quit"

The San Francisco Chronicle offers this report. Should Bill Jones replace him? See my earlier post.

Oops!

BNA reports (paid subscription required): "The Federal Election Commission lost a required registration letter sent to the FEC last year by President Bush's inaugural committee, pledging to officially disclose all of its private donors and to forgo foreign donations, an FEC spokesman told BNA Jan. 24."

"Crackdown Unlikely on Felon Voters"

The Seattle Times offers this report.

San Diego Mayoral Update

See here.

"Officials' Sons Accused of Election Day Tire Slashings"

A.P. offers this report, which begins: "The sons of a first-term congresswoman and Milwaukee's former acting mayor were among five Democratic activists charged Monday with slashing the tires of vans rented by Republicans to drive voters and monitors to the polls on Election Day." See also this column on Milwaukee's election administration controversies.

Arizona's Prop. 200 Cleared By Justice Department

See this report in the Arizona Republic, which begins: "The U.S. Justice Department on Monday cleared the way for counties across the state to carry out the voting provisions of Proposition 200, the anti-illegal immigration measure approved by Arizona voters in November....New voters would have to present proof of citizenship with a birth certificate, passport or other identification to register. All voters would have to show identification at the polls."

"New Election System Tests on Hold"

The Chicago Tribune offers this report.

Bauer on Regulating 527s

Bob Bauer comments here on proposed legislation in Congress to regulate more 527 organizations as political committees.

Could Jones Whom Shelley Succeeded Succeed Shelley?

Via Dan Weintraub, BoifromTroy and commenters are debating whether the California Constitution would allow Gov. Schwarzenegger to appoint Bill Jones to succeed Kevin Shelley if Shelley retires. Article V, Section 5(b) gives the Governor the power to appoint, subject to confirmation by both houses of the state legislature. Because Jones appears to be termed out (see Article V, Section 11 ["No ... Secretary of State... may serve in the same office for more than 2 terms."]), the answer may hinge on an exception to term limits contained in Article XX, Section 7 ("Those [term] limitations shall not apply to any unexpired term to which a person is elected or appointed if the remainder of the term is less than half of the full term.").

I don't know anything about the legislative history of this provision, but it does appear to apply as a textual matter to the Jones case. Perhaps a bigger obstacle is the appearance of a conflict of interest: As reported in this San Jose Mercury News article from June 2004, shortly after leaving office Jones became a paid consultant for Sequoia Voting Systems, and has lobbied local governments to adopt Sequoia's electronic voting systems. It seems to me any person to replace Shelley must be above even the appearance of a conflict of interest---trust and nonpartisanship should be the key toward restoring public faith in California's process.

Jaffee on McConnell Case

Erik S. Jaffe has written McConnell v. FEC: Rationing Speech to Prevent "Undue" Influence in the 2003-2004 Cato Supreme Court Review.

San Diego Mayoral Election Contest Trial to Begin Jan. 31

See this A.P. report.

Interesting Book on Post-Florida Election Reform

For my research on election administration reform, I've just been going through Election Reform: Politics and Policy (Palazzolo and Ceaser, eds. 2005). Here is the description:

Election Reform: Politics and Policy is the definitive work on the manner in which policymakers responded to the crisis that emerged from the 2000 presidential election. Editors Daniel Palazzolo and James Ceaser address two fundamental questions: How did the states and Congress respond to the problems in election law and administration that became apparent in the 2000 election? What factors explain the variety of ways in which different states responded? The book includes a theoretical framework for explaining election reform, an account of the Help America Vote Act, and in-depth studies of election law reform in eleven selected states. Anyone interested in the election crisis of 2000 and in the lessons learned from a major transformation of our electoral institutions will find this book essential reading. The book also contributes to the academic literature on policy innovation in the United States.

List of Contributors
Bruce Cain, James W. Ceaser, Doug Chapin, Joshua Dyck, James Gimpel, Mathew Gunning, David Kimball, Martha Kropf, Glen Krutz, R. Doug Lewis, Sarah Liebschutz, Todd Lochner, Karin MacDonald, Susan A. MacManus, Jerome Maddox, Daniel J. Palazzolo, Robert Montjoy, Gary Moncrief, Elizabeth Peiffer, Randall Strahan, John T. Whelan

A very useful set of case studies.

"Election Chiefs' Politics Spark Debate"

See this A.P. report.

"Aides: Shelley May Resign"

The Sacramento Bee offers this report on California's embattled Secretary of State.

"Truth, Justice, and the 527 Way?"

Eliza Newlin Carney offers this National Journal column (free access).

"Mid-Decade Redistricting: What’s Appropriate?"

Stuart Rothenberg offers this Roll Call column (paid subscription required), which begins: "The calendar says it is 2005, but Congressional redistricting is or again could be on the table in Georgia, Illinois and California, where Gov. Arnold Schwarzenegger (R) is pushing to change the way redistricting is done. He wants to take it out of the hands of the Legislature and give it to a panel of retired judges."

"Miami 'Riot' Squad: Where Are They Now?"

Al Kamen offers this column, which begins: " As we begin the second Bush administration, let's take a moment to reflect upon one of the most historic episodes of the 2000 battle for the White House -- the now-legendary "Brooks Brothers Riot" at the Miami-Dade County polling headquarters. This was when dozens of 'local protesters,' actually mostly Republican House aides from Washington, chanted 'Stop the fraud!' and 'Let us in!' when the local election board tried to move the re-counting from an open conference room to a smaller space.

"Democrats Prefer Election Fight at Capitol"

The Seattle Times offers this report, the latest in the saga of the Washington state gubernatorial controversy.

Profile of the Lawyers Involved in the San Diego Mayoral Case

See this San Diego Union-Tribune report.

"Murder Plot Charge Stems from Voting Probe"

The St. Louis Post-Dispatch offers this report, which begins: "Kelvin Ellis, a top administrator at East St. Louis City Hall, plotted to kill a witness in a federal vote fraud investigation, according to indictments opened Friday, which also accuse Police Chief Ron Matthews of apparently unrelated crimes." Thanks to a reader for passing this along.

Should Legislator Who Violated Arizona's Public Financing Rules Be Removed from Office?

See this fascinating article in the Arizona Republic.

Marelius on Redistricting Reform in California

See this San Diego Union-Tribune article. See also this Sacramento Bee report.

Issacharoff on the Iraqi Election

In the Washington Post Outlook, Sam writes Democracy Isn't Built on One Election Alone.

Schwarzenegger and Undoing Some California Initiatives

See this interesting Los Angeles Times report.

Texas Redistricting Case Coverage

The Dallas Morning News; Houston Chronicle.

"A 'Yes' Vote for Ohio Election Reform"

The Cleveland Plain Dealer offers this report, with sidebars on partisan leadership, poll workers, voter registration, provisional ballots, voting machines, long lines, recount calendar, and access for the disabled.

A.P. Report on Texas Redistricting Oral Argument

See here.

Update on Washington State Mess

See this report in the Seattle Weekly.

S.D. City Attorney Weighs in Against Frye Challenge

The legal memorandum is here and the news story is here. I note that although the memorandum contains a constitutional analysis, it ignores the Bush v. Gore analysis that could in fact be key to the resolution of this case.

"The Future of Election Reform"

Dan Tokaji has posted these interesting comments in response to an Electionline.org report viewing further congressional election reform as unlikely. I'm writing an academic article about election administration reform, focusing on the kinds of steps various institutional actors can take to avoid election problems. Tokaji has some interesting views on the potential unintended consequences of legislation requiring paper trails for electronic voting machines.

"Appeal of Redistricting is Before Federal Panel Again"

The Houston Chronicle offers this report. My earlier preview of today's oral argument is here. I'd be interested in hearing reports from today's oral argument.

"G.O.P. Loses Round in Election Case"

The Seattle Times offers this report. See also this A.P. report.

My book on sale

Amazon for some reason has lowered the price of "The Supreme Court and Election Law" to $35.00 (including shipping). You can find a link to order here.

"Gambling Industry to Offset Cost of Referendum on Slot Machines"

The Miami Herald offers this report.

"Still Fighting Redistricting"

The Austin Chronicle offers this report. See also this report in the Daily Texan, my blog post on this topic from yesterday.

Investigating Vote Fraud in Wisconsin

See Provision in Election Law Often Neglected in the Milwaukee Journal-Sentinel.

"State Eyes Election Reform"

The Denver Post offers this report.

A.P. Story on Clingman Oral Argument

See here. UPDATE: See also this New York Times article.

Friday's Hearing in Texas Re-Redistricting Case

On Friday, a three judge court hears oral argument in the Texas re-redistricting case on remand from the Supreme Court for reconsideration in light of Vieth. (You can find links to some of the briefs here and here).) I have now read the state's reply brief and the reply brief of the Jackson/Democratic Intervenors.

The case puts the lower court in a really tough position, because four Justices in Vieth ruled that partisan gerrymandering cases are non-justiciable, four dissenters proposed (at least) three different standards for judging the constitutionality of partisan gerrymander, and Justice Kennedy simply could not decide: he left the door open for future challenges, but rejected all the proposed standards that have been set forth so far. I'm going to stick with my earlier view:

What is the lower court to do? The lower court [judges] already pleaded with the Justices the first time around to come up with a workable partisan gerrymandering standard. Vieth has given them nothing really to work with. It will be up to plaintiffs to come up with a new standard on remand to meet Justice Kennedy's standards. In my forthcoming Election Law Journal article, "Looking for Standards (in All the Wrong Places): Partisan Gerrymandering Claims After Vieth," I argue that Vieth should be viewed as a placeholder decision. Likely the status quo (claims are justiciable, but no standard to use to judge partisan gerrymandering claims) will continue until we have a change in Court personnel, or until Justice Kennedy decides to finally commit in one direction or another.

It probably doesn't matter much what the lower court does, besides collect information on what actually happened in the 2004 election under the new district lines. It will all come back to the Supreme Court. And what is the Supreme Court likely to do? I have given up predicting how Justice Kennedy might decide things, but let me discuss in more detail the other potential wrinkle: By the time the case makes it back to the Supreme Court, we may have a new Chief Justice. There has been a lot of talk about how conservative (e.g., on abortion rights) that new Justice might be, but it is not clear that a conservative would necessarily reject an invigorated partisan gerrymandering standard. Imagine, for example if Tenth Circuit Judge (and former professor) Michael McConnell gets the nomination. He's written some very interesting stuff on redistricting, including Michael W. McConnell, The Redistricting Cases: Original Mistakes and Current Consequences, 24 Harvard Journal of Law and Public Policy 103, 103-04 (2000). (McConnell was attacked for this writing when he was up for confirmation, in my view unfairly---Doug Laycock defended McConnell on this score---see page 2 of the linked document.) We could thus be in for a new partisan gerrymandering standard, something I don't support but can foresee if there is a change in Court personnel in time. The Court could begin by adopting the position of the Jackson plaintiffs, that when a redistricting is done for the predominant (or sole) purpose of securing partisan gain, it should be struck down.

Bauer Rips NYT Editorial on the FEC

In this entry, Bob Bauer fisks this New York Times editorial calling for a revamp of the FEC.

Party Rights Case Argued in the Supreme Court Today

You can find the questions presented in Clingman v. Beaver here and my earlier coverage here. I'd be interested in hearing reports from today's oral argument and will post what I receive (with the permission of the sender).

Democrats Consider Ballot Measure Fundraising Limits in California

See this LA Times report. See also Steve Lopez's column, "Man of the People....People Who Pay." You can find my earlier oped on this topic here.

EAC Likely to Order Expedited Audit of Shelley Spending in CA

See here.

"Hybrid democracy, cruise control and 'Caesarism'"

Peter Schrag offers this column. You can find a draft of Beth Garrett's "Hybrid Democracy" article, referred to in Schrag's piece, here.

Complaint Filed Against Soros for Election-related activities

See this press release and complaint.

"Do Over"

Chrisopher Hayes offers this article at New Republic Online about calls for revotes in recent election controversies.

Texas Briefs

Someone sent me a copy of the state's briefs, but because they were scanned, they are too large for me to post. I would like to see the other briefs as well, and will post what I can. UPDATE: The Jackson/Democratic Intervenors Reply Brief is here. The scheduling order is here. The Texas brief is in two parts: Part 1 and Part 2.

Coverage of California Redistricting Proposal

See this San Francisco Chronicle article and this LA Times article.

"Take Back the Maps"

The Baltimore Sun offers this editorial on redistricting.

"Bills Offer Election Fixes"

The Seattle Times offers this report.

"One Last Election Lesson"

The New York Times offers this editorial about an electronic voting controversy in North Carolina.

"Restoring Voter Trust"

Roll Call offers this editorial (paid subcription required), which begins: "Though the 2004 presidential election was, operationally, a rousing success when compared to the debased standards of 2000, American democracy is hardly out of the woods. If anything, voter cynicism is rising, fed by pre-election hollering about rampant voter fraud (according to Republicans) and unreasonable barriers to voting (according to Democrats). In close races, the threat of litigation and simmering outrage now seems permanent. But there are things election officials can — and should — do to reduce public cynicism. A bare minimum step would be to require secretaries of state — who oversee elections in most states — to recuse themselves from all partisan activities while in office, including endorsing and stumping for candidates." The editorial also calls for taking election administration responsibility away from partisan secretaries of state.

"Kerry Cites Suppressed Votes in Election"

The Washington Post offers this report.

"League of Women Voters Drops Its Mayoral Lawsuit"

The San Diego-Union Tribune offers this report.

"Election Turnout in 2004 Was Highest Since 1968"

The Washington Post offers this report The story also talks about the future of some Democratic-leaning 527s..

Republican State Attorney General Assumes Control of Washington litigation

See here.

CA Governor's Redistricting Plan

Via Dan Weintraub, here is the redistricting by commission plan that the governor is supporting. The key provision here is that three special masters (retired judges meeting certain criteria) must insure that "To the extent possible, district boundaries shall be drawn to ensure a level of competitiveness that would result in a difference of no more than seven percentage points between the number of voters in each district who are registered with the two largest political parties in the State."

Texas Redistricting Reply Briefs Due Today

I'll try to post briefs when they are sent to me, though soon I'll be off to the Direct Democracy conference in Irvine.

"Shelley OKs Testifying"

The Sacramento Bee offers this report.

"Key interest groups financed large part of hand recount"

The Seattle Times offers this report, which begins: "he unprecedented hand recount that put Gov. Christine Gregoire in office this week was paid for in large part with contributions from powerful interest groups, including labor unions, tribes and trial lawyers, which gave much more than they would have been allowed during the campaign." See also GOP Seeks Criminal Records, which begins: "Republicans want a copy of the state's criminal-records database to compare it with the names of the nearly 3 million people who voted in the governor's race, as party attorneys search for felons who cast illegal ballots"

"Supreme Court to Ponder Primary System"

The Edmond Sun offers this preview of Clingman v. Beaver, which will be argued next week in the U.S. Supreme Court (questions presented posted here; lower court opinion here.) The Medill School of Journalism offers this analysis. From the Medill article: "If the decision stands, Columbia Law School Professor Richard Briffault speculates that it could drastically limit the ability of states to regulate primary elections. 'It is going to be hard for any state to enforce any primary rules in the face of a disagreeing party,' he said." Richard has also written a case preview of the case for the next issue of the Election Law Journal, which will be out later this month. My earlier blog coverage is here.

"Absentee Votes Need Tracking, Hood Says"

The Sun-Sentinel offers this report, which begins: "Florida's top election official told legislators on Thursday that the state should develop a tighter tracking system for absentee ballots."

A Call for Nonpartisan Election Administrators in Washington State

See this editorial in the News Tribune (Tacoma).

Public Financing on the Agenda in Washington State

See here.

Penn Law Symposium Available On Line

The University of Pennsylvania Law Review has published what I view as perhaps the best election law symposium yet, with articles on campaign finance, partisan gerrymanders, Voting Rights Act issues, false campaign speech, judicial campaign speech, political party rights, the California recall and other subjects. You can access the articles freely on line here. My own contribution to the symposium is an analysis of the Supreme Court's recent opinion upholding the constitutionality of BCRA (McCain-Feingold), Buckley is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission, 153 U. Pa. L. Rev. 31 (2004).

Washington State news

See Military ballots sent out on time, county logs show, Election -suit Judge Recuses Self, and Minnesota Had Closer Race in '62. Political Wire collects stories on funding for the continued Washington controversy.

"Ohio Pulls Plug on Electronic Voting"

The Cleveland Plain Dealer offers this report.

"Big Money Contributors Line Up for Inauguration"

The Washington Post offers this report.

"Turning Out the Watchdogs"

The New York Times offers this editorial asking for pro-reform commissioners to be appointed to the FEC.

"Loosening Term Limits: Key Lies in Honest Remapping"

George Skelton offers this Capitol Journal column.

More on California Initiative Campaign Finance Questions

Following up on my post from yesterday, Lance Olson writes:

Your reference to the FPPC "regulation" that limits contributions to $25,000 for committees that run ads at the behest of a candidate and that feature the candidate within 45 days of an election (Govt. Code section 85310) would not apply to the Governor if he calls a special election this fall--at least not as interpreted by the FPPC. FPPC regulation 18531.10(c) limits the application of 85310 to circumstances where the candidate featured is appearing on the ballot within 45 days. Of course, the Governor will not appear on the special election ballot. By the way, if the Governor were to cooperate in filming the ad, there would be little question that it was made at his behest.

Thanks for writing! If the FPPC's interpretation would hold up, that of course makes a very big hole in the FPPC's attempt to regulate ballot measure committees that act as alter egos of candidates. One way to counteract this interpretation is to expand the definition of what counts as candidate "control."

Emily's List Challenges Some of the FEC's BCRA Regulations on Allocations

The complaint and supporting papers are now available. Bob Bauer has filed the suit on behalf of Emily's List.

"Call It Democracy" Premiere

This documentary by Matt Kohn premieres this weekend at the Palm Springs International Film Festival. Call It Democracy" will screen on Friday, January 14 at 12:00 PM and on Sunday, January 16 at 6:00 PM. Both showings will take place at Camelot Theaters, 2300 East Baristo Road, Palm Springs, California (http://www.camelottheatres.com/).

"Democracy at Risk" Now Free on Line

A few weeks ago, I noted a special American Prospect report on election administration. It is now available here without a subscription.

"Stolen Election?"

The Wall Street Journal offers this editorial on the Washington state controversy.

Dan Walters on the Shelley Mess

See this Sacramento Bee column.

Schwarzenegger initiative strategy news

The San Diego Union Tribune reports that Gov. Schwarzenegger may be willing to loosen legislative term limits in exchange for an agreement to take redistricting out of the hands of the California llegislature.

Meanwhile, the Los Angeles Times reports about a group of Schwarzenegger confidantes who will raise substantial sums to support the governor's position on initiatives in the special election the governor is likely to call for June. The committee is important because of new California regulations that limit contributions to candidate-controlled ballot measure committees. Schwarzenegger's controlled committees can raise only $22,300 from individuals. These limits do not apply to independent committees.

This new committee, Citizens to Save California, is taking the position that it can consult with Schwarzenegger and follow his lead without Schwarzenegger being in "legal control" of the committee. I'm not so sure, and much depends upon how courts would construe the meaning of "control" under the new regulations (a point I discuss a bit in this paper). I think there's a strong argument that a committee made up of an officeholder's confidantes that coordinates its activities with the officeholder should be deemed as being "controlled" by the officeholder and subject to the limits.

There's also another new regulation that could come into play, one meant to prevent precisely the evasion we are about to witness with this new committee. This regulation (also discussed in my paper) imposes a $25,000 contribution limit on any ballot measure committee that spends at least $50,000 on advertisements within 45 days of an election that clearly identify a candidate for state office and that are made at the candidate’s “behest." There is sure to be litigation over what "behest" is, but it seems likely that the new committee will want to feature Schwarzenegger in its ads. His presence in ads in the last election seemed to help some initiatives and his absence, until near the end, in ads supporting reform of the California primary system (Prop. 62) is part of the explanation for why that initiative failed to pass.

"Democrats Challenge GOP Lawsuit"

Here is the latest news from Washington state.

"Bush Inaugural Gala is a Big Ticket Affair"

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

Kaus on Anti-Gerrymandering

See here (scroll down to: "Getting on the antigerrymanderwagon") for Mickey Kaus's newfound appreciation of taking the drawing of district lines away from politicians.

"Secretary of State a No-Show"

The Sacramento Bee offers this report on a California legislative committee hearing alleging improprieties in HAVA spending by California Secretary of State Kevin Shelley.

More on Washington State Mess

See New Error Found in Vote Tally and GOP Bid to Stall Gregoire is Turned Back.

Kentucky election dispute

See this report. Thanks to Lori Ringhand for the pointer, who notes that the outcome will determine whether Republicans will have a supermajority in the legislature necessary to take certain actions without Democratic agreement.

"In Response to Serious Concerns Over Presidential Vote in Ohio, Lautenberg Announces Measure to Prevent Partisan Activity by Election Officials"

See this press release. Thanks to Tova Wang for the pointer. Although the press release states: "This is not a Democratic or Republican issue," the Democratic senator uses examples only of Republican conflicts of interest. A mention of Kevin Shelley's problems would have been helpful here, even if he was not a co-chair of any campaign committee.

"Crisis of Trust Over Voting Difficulties Must Be Addressed"

I have written an oped for today's Roll Call, which you can access without a subscription here. You can also find an extended version of this oped, with hyperlinks, here. It begins:

It is two months after Election Day, and we still do not know with certainty the winner of the gubernatorial election in Washington state or the mayoral race in San Diego. Meanwhile, the Internet is swimming with conspiracy theories that Republicans, mostly in Ohio and Florida, stole the presidential election for George W. Bush.
Post-election controversies are usually the stuff of close elections, and this year is no exception: The Washington state gubernatorial race, for example, features a 130-vote margin out of almost 3 million votes cast. But this year’s election season is qualitatively different from earlier ones, in that those on the losing side of close elections increasingly are alleging fraud in the election process.
These claims, in turn, appear to be undermining the public’s faith in the electoral process, creating a much more dangerous situation than most people realize and requiring some radical changes in the way we run elections in this country.

Will Military Ballots Become an Issue in Washington Election Contest?

See here.

"High Court Declines to Hear Nader's Case"

A.P. offers this report, which begins: "The Supreme Court declined on Monday to consider whether Pennsylvania officials were wrong to keep Ralph Nader off the presidential ballot last November."

"Speech and Fraud"

The New York Sun offers this editorial, which begins: "Is anyone really surprised that another Clinton confidante has been indicted?" the chairman of the New York State Republican Party, Stephen Minarik, asked over the weekend. He was referring to Senator Clinton's former campaign finance director, David Rosen, whose indictment for concealing the cost of a Hollywood fund-raiser from the Federal Election Commission was unsealed last week in Los Angeles."

"What Happened in Ohio"

William Rasberry offers this Washington Post column.

"San Diego Lawsuits Pit Voters vs. Rules"

A.P. offers this report.

"Letter From Election Chief In Ohio Sought Illegal Funds"

The Washington Post offers this report, which begins: "COLUMBUS, Ohio, Jan. 8 -- The state's chief elections officer, accused of mishandling the presidential vote in November, sent a fundraising letter for his 2006 gubernatorial campaign that was accompanied by a request for illegal contributions. A pledge card with the letter from Secretary of State J. Kenneth Blackwell, a Republican who co-chaired the Bush-Cheney reelection campaign in Ohio, said "corporate & personal checks are welcome." Corporate donations are illegal in Ohio."

"Former Clinton Finance Official Indicted"

A.P. offers this report, which begins: "The finance director for Sen. Hillary Rodham Clinton's 2000 campaign is charged in a federal indictment with intentionally understating contributions for a Hollywood fund-raising gala for the senator. The four-count indictment, unsealed Friday in Los Angeles, charged David Rosen with filing false reports with the Federal Election Commission."

"Washington Lawsuit Disputes Results of Race for Governor"

The New York Times offers this report.

"Shelley May Get to Skip Testifying"

The Sacramento Bee offers this report.

"Congress Makes Reelection Official; Two Lawmakers Raise Objection to Ohio Balloting"

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

"Bill to Toss Campaign Law Moves Ahead"

The Cleveland Plain Dealer offers this report, which begins: "A labor-backed group unhappy with Ohio's new campaign finance law filed the necessary paperwork Thursday to try to overturn it in November. Criticism of the law centers on the quadrupling of limits on most donations from $2,500 to $10,000. Critics argue that the change will send more money into a political system already awash in corruption."

Second San Diego Suit Filed

See stories in the San Diego Union-Tribune and the Los Angeles Times.

Washington State Update

Howard collects the links here. With the new information, I now believe a court-ordered revote is within the realm of the possible.

"Democrats to Force Debate on Ohio Election"

The Washington Post offers this report.

"GOP To Make Strong Voter ID Push"

See this brief story from New Mexico.

Washington Election Controversy News

Howard Bashman has collected the links here, including this very important Seattle Times article that could provide the seeds for a revote argument (an argument I initially thought had no merit whatsoever).

"Schwarzenegger Proposes Overhaul of Redistricting"

The New York Times offers this report.

Bauer Responds on Candidate-Controlled Ballot Measure Committees

Bob Bauer responds here to my LA Times oped yesterday calling for contribution limits on candidate-controlled ballot measure committees.

Off to AALS

Regular blogging will resume Monday. Depending upon the Internet connection, I may post intermittently before Monday.

"GOP Radio Campaign Pushes for Wash. Revote"

A.P. offers this report.

Gov. Walks a Fine Line on Boundaries"

The Los Angeles Times offers this report, with the subhead: "As he mulls the prospect of a special election, Gov. Arnold Schwarzenegger is facing an important political decision: Just how partisan does he want to be?" See also A Term Limit-Remap Tradeoff?.

"Count Votes the Same Way We Count Money"

Jim Adler offers this oped in the Seattle Post-Intelligencer.

New Issue of "The Forum" on Post-Election 2004

You can find a very interesting selection of articles here.

"2/3s of Fla. Provisional Ballots Rejected"

A.P. offers this report.

"Money and Influence Flow Through a Ballot Measure Loophole"

I have written this oped for the Los Angeles Times. Interested readers can find extended constitutional and empirical analysis for the claims cited in the oped in my forthcoming Southern California Law Review article (most recent draft posted here). I'll be presenting the academic paper at the AALS Workshop on Democratic Governance on Thursday and at The Impact of Direct Democracy Conference on Jan. 15 in Irvine.

"35th Senate race back in court"

See this news from New York about a dispute over the counting of votes cast in the wrong district.

"Political gamesmanship is a losing proposition"

Peter S. Canellos offers this Boston Globe column on gerrymandering. Thanks to Jeff Wice for the link.

"Vote as You Bank"

Roll Call offers this editorial (paid subscription required), which begins: "Every day, tens of millions of people use ATMs in utter confidence that their bank transactions will be accurately recorded. And as Bank of America brags in its television ads, it processes 10 billion checks annually with an error rate close to zero. This year, and the sooner the better, Congress ought to make America’s voting system work like that."

"Electoral Vote Critics Claim Senate Support"

Roll Call offers this report (paid subscription required), which begins: "The three Democratic House Members who announced plans last weekend to protest the counting of electoral votes indicated Monday that as many as three Senators may join them. If even one Senator were to join the three lawmakers in a formal written contest of the election, both chambers would be forced to hold a two-hour debate during Thursday’s joint session."

"GOP Abandons Ethics Changes"

The Washington Post offers this report. A snippet: "The proposal would have made it more difficult for lawmakers to discipline a colleague for unethical behavior and would have allowed Majority Leader Tom DeLay (R-Tex.) to keep his post if he is indicted by a Texas grand jury that is looking into his campaign finance practices."

A Mayoral Recall in San Diego?

See this San Diego Union-Tribune report.

Bauer on "Assessing the Impact of 527s"

Bob Bauer weighs in here on his More Soft Money, Hard Law site regarding conflicting opinions about the role of 527s in election 2004.

New Issue of "Extensions" on Congressional Redistricting

The Fall 2004 issue just arrived in the mail. Eventually, the online version should be posted here.

Unclear Supreme Court Rules for Breaking Tie Votes if Rehnquist Retires

See this interesting Washington Post article.

Wang on Ohio Woes

Tova Wang has posted More Trials and Tribulations for Ohio on the Century Foundation's "News and Commentary" page.

More on a Chief Justice Thomas

Larry Solum and I debated the question whether President Bush would nominate Justice Thomas to be Chief Justice. Over at the Legal Affairs Debate Club, Law Professors Stephen B. Presser and Samuel A. Marcosson are debating whether President Bush should nominate Justice Thomas to be Chief Justice.

"Republican Reed faces GOP wrath over recount decisions"

The Seattle Times offers this report.

"'Pony Up' and Then 'Party On,' Inaugural Officials Say"

The New York Times offers this article.

"Death of the Secret Ballot"

Michael Kinsley offers this Los Angeles Times column.