"Judge rules against state parties"

The Seattle Post-Intelligencer offers this report, which begins:

A candidate who wants to run for elective office as a Republican may do so without the blessing of the Washington State Republican Party.

That was the upshot of an injunction issued by U.S. District Judge Thomas Zilly. After throwing out the state's Top Two primary election law two weeks ago, he declined yesterday to expand his ruling to let the political parties control which candidates get to use a party's label.

By choosing not to give the Democratic, Republican and Libertarian parties more than what they had already won, the judge may have triggered yet more litigation -- an encore to the parties' lawsuits that invalidated the state's popular "blanket" primary in 2003 and, on July 15, the Top Two system that voters approved last fall as Initiative 872.

"E-voting machines rejected"

The Oakland Tribune offers this report, with the subhead: "State says Diebold failures in massive mock election could translate to problems at polls."

Oral Argument Set for August 5 in Prop. 77 Case

Randy Riddle has posted the court's order here. What is significant to me is that the Third Appellate District did not recuse itself, as it has in the past when its former member, Daniel Kolkey, has been involved in the litigation.

Thernstrom on VRA

Abigail Thernstrom offers Emergency Exit, an oped in the NY Sun (paid subscription required). I can't read it without a subscription, but it is about renewal of section 5 of the VRA.

"Kennedy faults Roberts' views on Voting Rights Act"

A.P. offers this report. I'll have more to say about this soon.

Is the Answer to Union "Paycheck Protection" Corporate "Shareholder Protection?"

See this L.A. Times article with some very interesting developments in California.

Bauer Remarks to ACS on Progressive Politics and Reform

See here.

"Voter advocates to sue state"

The Columbus Dispatch offers this report (subscription required). It begins: "A coalition of voter advocates, led by the League of Women Voters of Ohio, today plans to file what it calls a "historic, nonpartisan lawsuit" compelling the state to fix its system of elections. The lawsuit, to be filed in federal court in Toledo, alleges that Ohio Secretary of State J. Kenneth Blackwell, Gov. Bob Taft and their predecessors failed to ensure the right to vote in Ohio."

Interview with Rep. Pence About 527 Fairness Act

See here. Thanks to Ed Feigenbaum for the pointer.

"Ways to Reform the Initiative Process"

Michael Hilzik offers this LA Times column.

"Bush v. Gore is the Litmus Test"

Sidney Zion writes this oped in the NY Daily News.

Prop. 80 Back on Ballot in California

The California Supreme Court issued an order today (see here, scroll down to last entry) restoring Prop. 80 to the ballot. The order reads:

Petition for review GRANTED. The stay issued by the Court of Appeal as part of its July 22, 2005, decision, restraining the Secretary of State from taking any steps, pending the finality of the Court of Appeal's decision, to place Proposition 80 in the ballot pamphlet or on the ballot of the special election to be held on November 8, 2005, is vacated. As the Court of Appeal recognized, California authorities establish that "it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people's franchise, in the absence of some clear showing of invalidity." (Brosnahan v. Eu (1982) 31 Cal.3d 1, 4.) Because, unlike the Court of Appeal, at this point we cannot say that it is clear that article XII, section 5, of the California Constitution precludes the enactment of Proposition 80 as an initiative measure, we conclude that the validity of Proposition 80 need not and should not be determined prior to the November 8, 2005 election. Accordingly, the Secretary of State and other public officials are directed to proceed with all the required steps to place Proposition 80 in the ballot pamphlet and on the ballot of the special election to be held on November 8, 2005. After that election, we shall determine whether to retain jurisdiction in this matter and resolve the issues raised in the petition. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ."

This is very interesting, and contrasts nicely with the California Supreme Court's decision a few years ago in Senate v. Jones, 988 P.2d 1089 (Cal. 1999) to engage in pre-election review a few years ago to remove an initiative measure (on single subject grounds) that would have changed redistricting rules and the rules related to setting legislators' salaries. In that case, Justice Kennard in dissent raised the same points raised by the Court's order here.

What does this mean for review of the Prop. 77 litigation? Nothing directly. That case remains before the Third Appellate District. I have predicted (perhaps rashly) that there's an 80% chance the trial judge's ruling keeping Prop. 77 off the ballot will be affirmed. Part of that was based on my belief that in the summer the California Supreme Court seems pretty reluctant to get involved in these cases. So it may be that the California Supreme Court is more likely to eventually take a closer look at the merits of the Prop. 77 appeal than I had thought.

Will L.A. Go "Clean Money"?

See Campaign Finance Plan Urged in the LA Daily News.

"Ending a love-hate relationship"

Tracy Westen and Bob Stern of the Center for Governmental Studies offer this article in the California Bar Journal regarding ways to improve California's initiative process.

Lockyer Defends His Handling of Prop. 77

See this letter in the Wall Street Journal. (Paid subscription required.) Thanks to Steven Sholk for the pointer.

Two from Roll Call

See Expired Terms Loom Over FEC and EAC Pick Likely to Move Fast, which begins: "Colorado Secretary of State Donetta Davidson (R) has been named to fill the open seat on the Election Assistance Commission, and Senate Majority Leader Bill Frist (R-Tenn.) indicated Tuesday that she may be confirmed before the end of the week." Paid subscription required.

Roberts Mooted Ted Olson in Bush v. Gore Case

The Miami Herald offers Roberts had larger 2000 recount role.

Debate on Campaign Spending Limits

The debate on the Sorrell case, featuring Brenda Wright, James Bopp, Adam Lioz, and John Lott, will take place at Georgetown Law School on August 2. I have posted the flyer here.

SacBee Opinions on Prop 77 (Redistricting)

Tony Quinn writes Arnold's own Keystone Kops. Dan Weintraub writes Proposition 77 case pits principle vs. voters' will (and asks this interesting related question on his blog), and the newspaper editorializes, Cancel special election.

"Governor Refuses to Cancel Nov. 8 Special Election; Panel temporarily stays a court ruling striking from the ballot a redistricting measure."

The Los Angeles Times offers this report. Regarding the stay of the trial court order ordering the redistricting measure off the ballot, I don't read anything on the merits into the granting of the stay. Failure to grant the stay would have been like a final decision on the merits (think the Supreme Court stay in Bush v. Gore). Had the trial court order remained in place, it would have been impossible for the 20-day public inspection period to go forward as planned.

As far as the merits, I am going to predict that the appellate court (which may turn out not to be the 3rd appellate district---they have recused in the past when their former colleague, Daniel Kolkey was involved in litigation) is going to affirm the trial court, and the California Supreme Court is going to deny review. I say this with about 80% confidence.

"Goodbye Mr. Smith, and Welcome Back to Ohio"

This unsigned commentary appears at the OSU election law website.

We Should Soon See Judge Roberts' Memos on the 1982 Voting Rights Act Amendments

The New York Times reports that papers from Judge Roberts' time in the Reagan Administration will be released. These include important papers on the 1982 Voting Rights Act. I believe the papers will be coming from the Reagan Library, so there may be a delay in processing them. Some papers coming from the National Archive will be released Tuesday. Once other Roberts papers from the Reagan era had been released, I predicted these would be released as well. I look forward to reviewing them.

"Election Challenge" Cases Have More Than Doubled Since 2000

Some readers of this blog may have seen some data that I posted regarding a rise in the number of election cases since the 2000 election. I posted preliminary data, just from state cases, in an SSRN draft version of my forthcoming Washington and Lee Law Review, "Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown." Figure 3 in that draft showed an increase in the number of cases filed in state court in which the word "election" appeared close to the word "challenge" (culling out cases obviously not about election law). The state court only version of the chart showed 60 cases in 1996 compared to 252 in 2002.

I have now expanded the chart to include state and federal cases and to include data through 2004. You can see the results in this chart. There were 108 such cases in 1996 and 361 cases in 2004. The average number of cases from 1996-1999 was 96 per year. That number increased to an average of 254 cases per year from 2001-2004. Of course, some of the increase has to do with the fact that cases in the earlier part of the decade are redistricting cases. But even excluding the redistricting cases there is a huge increase. There were 6 redistricting cases in the database in 2001, 19 in 2002, 8 cases in 2003, and 27 cases in 2004. Removing those from the count in the 2001-2004 period still yields an average of 240 cases per year. An Excel spreadsheet containing the case names, citations, and brief descriptions of each case is here.

"Balancing Access and Integrity: The Report of The Century Foundation Working Group on State Implementation of Election Reform"

You can find the entire report here. The press release and report highlights show that the working group made recommendations in the areas of voter registration, provisional ballots, statewide voter registration databases, felon purges, voter identification, and the testing and certification of voting systems.

Election Law Teacher Database Now Updated

You can find it, as an Excel spreadsheet, here.

Carney on the FEC after the Shays v. FEC Ruling

Eliza Newlin Carney's latest "Rules of the Game" column is here.

Tokaji on Turnout in Ohio, the DOJ, and a Possible Voting Rights Act Claim

See here.

"FEC clears Sinclair in flap over Kerry movie"

A.P. offers this report. Maybe more tea leaves for the FEC internet rulemaking?

"South Dakota ordered to rewrite redistricting law"

Indian Country Today offers this report.

"Donors Motives Varied"

The Orange County Register offers this report, with the subhead: "Those who sign the big checks have agendas: power or profit or ideology or pleasure – even better government."

"Disclosure rules missed governor deal"

The Sacramento Bee offers this report, which begins: "When revealing details of their finances to comply with the state's conflict of interest disclosure laws, California officials fill out forms that are much like erotica from the early 1900s: They bare a bit of their personal financial flesh, but much is left to the imagination. The adequacy of the law and the disclosure forms have come under scrutiny since details of Gov. Arnold Schwarzenegger's $5 million magazine deal were revealed this month in an obscure and much later securities filing, but not on his own disclosure form."

Financial Woes at the 527 "ACT"

The Washington Post offers Democratic Booster Cuts Liberal Spending.

"The governor must retreat to advance; stopping the special election, Schwarzenegger can come back stronger than ever."

Kevin Spillane writes this Los Angeles Times oped. See also this Sacramento Bee report.

Another Proposition Off the Special Election Ballot

Randy Riddle has the details here; the opinion is here. According to the court, the measure, Proposition 80, sought to make a change to energy regulation though an initiated statute, but this kind of change could only be made by constitutional amendment.

Judge Roberts and the 1982 Voting Rights Act Memos: Why I Now Expect They Will Be Produced

I have noted that civil rights opponents of Judge Roberts' nomination to the Supreme Court have pointed to his role in crafting the Reagan Administration's initial opposition to amended the Voting Rights Act. In 1982, despite the Administration's efforts, Congress passed amendments creating an "effects" test in section 2 of the VRA, achieving the goal of making it easier for minority plaintiffs to bring vote dilution claims following the Supreme Court's decision in Mobile v. Bolden.

My earlier post noted that the memos prepared by Judge Roberts had not been released, so it was impossible to know the extent to which his own views on the desirability (or not) of the new section 2 were reflected in Administration policy. I had assumed that the Bush administration would block production of the memo, on grounds of executive privilege. I now think the memo will indeed be produced.

This Boston Globe report on Judge Roberts' civil rights record notes that civil rights groups are intensely interested in the voting rights memos. Today's Washington Post features this extensive article based upon memoranda Roberts prepared in other matters that are now available at the Reagan Library (a 30 minute ride from my house, by the way). And the New York Sun reports the following:

The Simi Valley, Calif., library lists hundreds of files prepared by Mr. Roberts on subjects ranging from the Abscam bribery scandal to humanitarian assistance to Nicaragua. About 4,200 pages of the files are available to the public, but the vast majority of his documents, numbering in the tens of thousands or more, are still awaiting processing.

Senate Democrats have said they will ask for full access to the records, but an archivist said the nonpublic files will be released only upon the request of the Bush administration.

So here the case against release of the documents falls apart. One cannot plausibly claim, as Shannen Coffin does here, that releasing the documents will chill candid speech of those lawyers working for the administration. The papers are 25 years old. Roberts' papers on other topics from the year are already coming out, and the very papers of concern to the civil rights community apparently already would have been released, but for the administrative delay at the Reagan Library in having them produced. And apparently it will just take a phone call from the White House to get them released.

Richard Epstein on the Roberts Confirmation and the McConnell Case

See this Wall Street Journal editorial (paid subscription required). Thanks to Mike Renaud for the pointer.

"Historic Voting Rights Conference Set for July 25-26"

See this announcement at civilrights.org.

"Federal officials investigate LA compliance with voting law"

A.P. offers this report.

"Tea Leaves" on How the FEC Will Come Down on Whether Bloggers Should Get the Press Exemption?

Adam Bonin sees some hints in the FEC's ruling on a complaint against CBS. Allison Hayward excerpts the most important statement in this MUR signed by 2 commissioners. An excerpt of that excerpt: "we can find no statutory, constitutional, or especially, policy justification that would deny the so-called press exemption to any periodical publisher of political news or views, whether publishing in print, by broadcast, or over the internet." See also this Washington Post report.

"New secretary of state describes himself as a 'redneck farmer'"

See this news from Louisiana.

"Reform Legal, But Stalled"

The Palm Beach Post offers this editorial, which begins: "The Federal Election Commission is supposed to enforce campaign laws, but the two major political parties have turned it into a loophole machine."

"Gov.'s Remap Bid Ruled Invalid"

The Los Angeles Times offers this report.

Breaking News: Judge Orders California Redistricting Initiative Removed from the Ballot

The judge's written order is here. A snippet:

The procedures in question are clear and well known and easily followed. There is no good reason to put the courts in the position of having to decide what is good enough for qualifying an initiative measure for the ballot when actual compliance is easily attainable. The initiative process is to important to so broadly apply the doctrine of substantial compliance as RPI has requested. To rule otherwise would run the risk of the court inappropriately interjecting itself into the "political thicket." The court finds the purposes of the constitutional and statutory requirements at issue would be frustrated if the court were to apply the substantial compliance doctrine to excuse the clear defects in this situation.

What happens next? I expect an immediate appeal and stay, and for this to ultimately get to the California Supreme Court. This presents a pure question of law, so there won't be any deference to the decision of the lower court.

But I think the lower court has it about right, as I've indicated in this earlier post. At the very least, this blunts the earlier attack on me by the proponents' lawyers. Responding to my analysis, James Sweeney wrote: "“Come on, Rick, you cannot be serious! Surely, you know that the reapportionment initiative and its preparation will ultimately be found to satisfy the 'substantial compliance' doctrine, and the voters will have their opportunity to decide whether the initiative will succeed." UPDATE: A.P.'s story is here.
Update 2: I think I was a bit hasty in writing that the appellate review will be de novo. In fact, the court did make some factual findings about what the initiative proponents' knew and when they knew it that could be potentially relevant on appeal. For more on this see this post by Dan Lowenstein (who is involved with the case on the side of the measure's opponents) and this post at the Southern California law blog. Factual findings are subject to a more deferential standard of review, making it even more likely that the judge's ruling gets upheld on appeal.

"Nominee Gave Quiet Advice on Recount"

The New York Times offers this report, which begins: "John G. Roberts advised Gov. Jeb Bush during Florida's presidential recount in 2000, even traveling to Tallahassee from Washington to help him navigate those frenzied 36 days."

Sensenbrenner: VRA Reauthorization Hearings to Begin in Fall

See this otherwise confusing Washington Times report.

"Flaws dooming initiative plans, critics contend"

The San Diego Union-Tribune offers this report. See also Hearing Slated Over Redistricting in the Los Angeles Times, Energy Industry Seeks to Delete Proposition in the Sacramento Bee, and Lawmakers, civil rights groups join fight over governor's proposal by A.P.

"Timing and Turnout in Ohio"

Walter Mebane offers this analysis on voting disparities and racial discrimination in the 2004 presidential election in Ohio.

Campaign Finance and a Justice Roberts

From today's Washington Post editorial:

Two other areas where Judge Roberts could shift the court are campaign finance regulation and affirmative action in education. In both areas, Justice O'Connor provided the decisive fifth vote for upholding challenged policies: the McCain-Feingold campaign finance law and race-conscious admissions at the University of Michigan. Judge Roberts's elevation raises the possibility of the court's taking a different course or even reconsidering those holdings, both of which we consider correct. It is particularly important that the court give Congress constitutional leeway to adopt effective campaign finance rules.

I must say I am pleasantly surprised that this issue is getting national attention, and perhaps will even be addressed in the confirmation hearings.

2005 Election Law Supplement Now Available Online

This message is for election law course instructors who teach using Lowentein & Hasen, Election Law---Cases and Materials (3d ed. 2004). The 2005 Supplement is ready for free downloading here.

The Supplement cover notes: "Permission is hereby granted to instructors assigning the Lowenstein & Hasen casebook to distribute this Supplement free of charge to students who have purchased the casebook. All other redistribution is prohibited without the permission of the authors."

MALDEF Files Suit Against California Initiative

From a MALDEF Press Release I have received:

Proposition 77, the measure to change redistricting in California, is being improperly placed on the upcoming special election ballot, said MALDEF in a federal lawsuit filed today. MALDEF is calling for the state to hold off placing the measure on the Nov. 8 ballot until the state complies with the Federal Voting Rights Act. The lawsuit follows a separate state court action by the California Attorney General which also challenges the process by which petitioners gathered signatures for a version of the proposal that differed from the one approved by the Attorney General.

The lawsuit, Martinez v. Monterey County (United States District Court, Northern District, San Jose Division) asserts that the Secretary of State and County officials’ certification and preparations for an election on Proposition 77 violates Section 5 of the federal Voting Rights Act, which is designed to protect minority voters. Under the Act, all changes to voting procedures in certain counties of California, including Monterey County, may not be implemented without first obtaining federal approval.

“Proposition 77's proponents violated the California constitution and election code by filing one version of their ballot initiative to change the way congressional and state legislative districts are redrawn in California, but then collected signatures on another version, giving the state Attorney General no opportunity to review those changes,” said MALDEF Attorney Steven J. Reyes. “And by certifying Proposition 77 for a November 8 election, the Secretary of State has changed the rules for initiative ballot measures.”...

"Georgia's Undemocratic Voter Law"

The New York Times offers this editorial, which begins: "Georgia has passed a disturbing new law that bars people from voting without government-issued photo identification and seems primarily focused on putting up obstacles for black and poor voters. The Justice Department is now weighing whether the law violates the Voting Rights Act. Clearly it does, and it should be blocked from taking effect."

Judge Roberts and the Voting Rights Act: What do we know?

As I have been writing, there is no question that whoever replaces Justice O'Connor on the Supreme Court can have a great deal of influence on election law. Depending upon how that new Justice votes, we could potentially see an end to the current rules for campaign financing (for example, making it easier for corporations and unions to spend money for election related activities), a change in the rules for partisan gerrymandering claims, and potentially a holding that a reauthorized preclearance provision of the Voting Rights Act is unconstitutional as exceeding Congressional power.

President Bush's newly named nominee to replace Justice O'Connor, D.C. Circuit judge John G. Roberts, Jr., does not appear to have much of a paper trail on election law issues. We are told that Roberts will be a lot like Chief Justice Rehnquist, that he could make a dynamic center of the Court (with Justices Kennedy and Breyer), and that he is someone with reverence for the Court, not anger like a Justice Scalia or Thomas.

These generalizations don't help much in knowing how a Justice Roberts would rule in election law cases. For example, even if he believed that it should be unconstitutional to limit corporate and union expenditures in elections, an "institutionalist" with respect for stare decisis might move slowly, not boldly, to overturn precedents such as McConnell or Austin.

Opponents of Judge Roberts have tried to paint him as an opponent of the Voting Rights Act. This San Francisco Chronicle editorial, for example, states that Roberts advocated "against a congressional effort to make it easier for minorities to argue that their votes had been diluted under the Voting Rights Act."

Although this statement appears technically true, it tells us nothing about what Judge Roberts actually thinks of the Voting Rights Act. I found this information on page 4 of this Alliance for Justice report opposing the nomination of Roberts for confirmation to the D.C. Circuit:

After a 1980 Supreme Court decision, Mobile v. Bolden, dramatically weakened certain sections of the Voting Rights Act, Roberts was involved in the administration’s effort to prevent Congress from overturning the Supreme Court’s action. The Supreme Court had decided, despite a lack of textual basis for this interpretation of the statute, that plaintiffs claiming certain violations of the Voting Rights Act, such as minority vote dilution, had to prove that the discrimination was intentional rather than just having a discriminatory effect.5 Roberts joined the Administration in opposing the “Section 2” extension of the Act, strongly supported by both the House and the Republican-controlled Senate, which would have reinstated the effects standard. Instead, he participated in the effort to amend the extension of the Act so that voting rights plaintiffs would continue to have to prove discriminatory intent, a much harder task.6

Footnote 6 to the report states: "Critical portions of the FOIA documents that could show Roberts’ positions on this issue were redacted, making it impossible to document the actual level and substance of his influence and involvement."
So Judge Roberts' position on rewriting section 2 of the Voting Rights Act in 1982 appeared to be one taken at the behest of the administration he was serving, and may or may not represent his personal opinions.
Unless the White House agrees to turn over internal memoranda from Judge Roberts' service in earlier administrations, the only additional insight we are likely to get on Judge Roberts' views of election law cases is going to come from answers that he gives to the committee. In the meantime, it does not appear to be a fair characterization to paint him as opposed to all or part of the Voting Rights Act (or campaign finance laws for that matter). It is fair to say that he has no record in this area from which those who support campaign finance reform or a strong Voting Rights Act can take any comfort.

"Avoid the Rush To Judgment: Don’t Abolish 527s"

Nan Aron and David Keating write this Roll Call oped (paid subscription required). It begins:

Congress is considering several bills that would limit free expression to such an extent that they have drawn the united opposition of groups that almost never see eye-to-eye — and are more accustomed to slugging things out toe-to-toe.

Like us.

What could create such an unlikely coalition of political pugilists? S. 271, S. 1053 and H.R. 513 — bills that would effectively abolish the groups that, in Washington shorthand, are known as 527s.

Who Will Be the New Commissioners at the FEC?

The Hill offers this very interesting report. Thanks to Jason Levitis for the pointer.

"Voting act gets early lift from House"

New York Newsday offers this report, that those following the debate over Section 5 reauthorization will want to read.

"Governor Is Focus of Ethics Complaint"

The Los Angeles Times offers this report, with the subhead: "Top Democrats say that Schwarzenegger's lucrative contract with a publisher violated state laws over political gifts."

"FEC Clears Rev. Jerry Falwell on Complaint"

A.P. offers this report, which begins: " The Federal Election Commission has dismissed a complaint against the Rev. Jerry Falwell that said he broke federal election law by urging followers last summer to re-elect President Bush. Falwell's lawyer, Mathew D. Staver, said in a news release Monday that the FEC notified him that it had ruled in the evangelist's favor by a vote of 6-0."

"Two San Diego councilmen convicted on corruption charges"

The San Diego Union-Tribune offers this report, which begins: "SAN DIEGO – Acting Mayor Michael Zucchet and Councilman Ralph Inzunza were convicted Monday on federal corruption charges, with a jury finding the politicians conspired with a strip club owner to ease restrictions on such clubs." Thanks to Robbin Stewart for the pointer.

"What Should the New Justice Do About Campaign Finance?"

Edward Foley offers this must read commentary on what is likely, and what should, happen to campaign finance jurisprudence on the Supreme Court in light of Justice O'Connor's planned departure.

Polsky and Charles on 527s

Gregg Polsky and Guy Charles have posted Regulating 527 Organizations (forthcoming George Washington Law Review) on SSRN. Here is the abstract:

In this Essay, we consider whether the Federal Election Commission ("FEC") has the authority to regulate independent 527 organizations (e.g., Swiftboat Veterans for Truth, Moveon.org, etc.) as political committees under the Federal Election Campaign Act. This issue, which was hotly debated during the last election cycle when it was considered and ultimately tabled by the FEC, is an extremely complex one that requires a deep understanding of election, tax, administrative, and constitutional law. After considering how these areas of law intersect, we conclude that the FEC lacks the authority to regulate independent 527 organizations as political committees.

Polsky and Charles on 527s

Gregg Polsky and Guy Charles have posted Regulating 527 Organizations (forthcoming George Washington Law Review) on SSRN. Here is the abstract:

In this Essay, we consider whether the Federal Election Commission ("FEC") has the authority to regulate independent 527 organizations (e.g., Swiftboat Veterans for Truth, Moveon.org, etc.) as political committees under the Federal Election Campaign Act. This issue, which was hotly debated during the last election cycle when it was considered and ultimately tabled by the FEC, is an extremely complex one that requires a deep understanding of election, tax, administrative, and constitutional law. After considering how these areas of law intersect, we conclude that the FEC lacks the authority to regulate independent 527 organizations as political committees.

"Keep Blogs Unregulated"

Adam Bonin offers this column in the National Law Journal.

"Some say landmark voting act in danger; They want 1965 law to retain protections"

The State (South Carolina) offers this report.

"The congressman from $37,000; Why shouldn't our political districts reflect our incomes instead of our ZIP Codes?"

Randy Cohen, who writes "The Ethicist" column for the New York Times Magazine, writes this LA Times oped. A snippet: "Because it is our 1040s not our ZIP Codes that best express our political interests, congressional districts should be re-imagined to comprise not the people who happen to live within a few miles of one another, but those who earn within a few dollars of one another."

"Court Orders Tougher Campaign Finance Rules"

The Washington Post offers this report on the D.C. Circuit's Shays v. FEC opinion. My earlier analysis is here. See also Bob Bauer's thoughts.

"GOP trio have big impact via PACs"

The San Bernadino Sun offers this report, which begins: "Three congressmen who represent parts of San Bernardino County a re among the top participants in a campaign fund-raising system that allows politicians to win favor by donating large amounts of money to each other."

"Uncle Sam, Meet the Bloggers"

See this report on AlterNet.

Breaking News - District Court Issues Preliminary Injunction Barring Washington State Top Two Primary

You can find the district court's order and opinion here. See also this Seattle Times news update. In essence, the district court ruled that the "top two" system was not a nonpartisan primary, but rather was a partisan primary because of the use of party labels. Here is a snippet:

Party affiliation plays a role in determining which candidates voters select, whether characterized as “affiliation” or “preference.” Tashjian, 479 U.S. at 220. The top two nature of the primary does not cure this defect. Parties cannot be forced to associate on a ballot with unwanted party adherents. See Section VI.A.4, supra. The right to select the candidate that will appear on the ballot is important to political parties that invest substantial money and effort in developing a party name. Party name and affiliation communicate meaningful
political information to the electorate.22 The Democratic Party argues that it has expended considerable time and expense to develop a coherent set of goals and principles that guide the party, and that candidates asserting an affiliation with the party will receive numerous votes based solely on their proclaimed affiliation with the party, and implied adoption of its message and principles. Even non-commercial associations are entitled to protect their name
against misappropriation and misuse. See, e.g., Most Worshipful Prince Hall Grand Lodge v. Most Worshipful Universal Grand Lodge, 62 Wash. 2d 28, 35 (Wash. 1963) (“The underlying concept is that of unfair competition in matters in which the public generally may be deceived or misled.”); Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557, 566 (1995) (private association could not be required to admit a parade contingent expressing
message not of the organizers’ choosing); Boy Scouts of Am. v. Dale, 530 U.S. 640, 659 (2000) (First Amendment protects Boy Scouts’ right to exclude leader whose presence would expess a message at odds with Boy Scout policies). The Court is persuaded by Plaintiffs’ arguments that allowing any candidate, including those who may oppose party principles and goals, to appear on the ballot with a party designation will foster confusion and dilute the party’s ability to rally support behind its candidates.

Two questions: (1) Would the court have reached a different result had the Washington initiative allowed parties to prevent use of their party label in the primary, as the California initiative would have done (Disclosure: I was part of the legal team working on the California initiative)? (2) Will the Ninth Circuit reverse?

Will Reauthorization of the Voting Rights Act Come Too Quickly and Easily, Rendering It Unconstitutional?

The preclearance provision (section 5) of the Voting Rights Act, along with some other provisions of the Act, come up for renewal in 2007, and it was originally expected that Congressional debate over renewal would come in 2006 or early 2007.

Things now appear to be moving much faster. Back in February, it appeared that President Bush did not even know that the reauthorization issue was coming, and his spokesperson was non-committal about reauthorization. Now, the President not only expressed support for reauthorization; he wants to look for ways to strengthen the act. Perhaps even more importantly, according to this press release, "House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.) today is announcing he will introduce legislation to extend the Voting Rights Act for 25 years and is calling for a bipartisan approach to civil rights issues. " In his prepared remarks, Sensenbrenner said: "The Voting Rights Act must continue to exist – and exist in its current form." This Washington Post report notes that "House Speaker J. Dennis Hastert (R-Ill.) included reauthorization of the Voting Rights Act among his immediate priorities when he outlined his upcoming agenda on the House floor before the Fourth of July district work period." This new urgency may explain today's Wall Street Journal oped by Thernstrom and Blum opposing reauthorization.

So it may be that we are on track for a quick renewal of section 5 of the Voting Rights Act to apply to the same jurisdictions as in 1982, and to apply for another 25 year period. That might sound like a great potential victory for the civil rights community, which so far has been applauding these actions (and the Post suggests that this is part of Republican outreach to minority communities).

But this might not be much of a victory. There are strong reasons to believe that a reauthorization tied to the use of a test or device for voting in 1965 and 1982 and that extends federal intrusion into state and local voting rules for another generation would be unconstitutional. The basic point (spelled out in much greater detail here) is that in recent years the Supreme Court has limited the scope of Congress's power to burden the states with onerous requirements. If Congress passes a broad-based law subjecting some states to preclearance for 25 more years without showing a strong evidentiary record that states are engaging in unconstitutional racial discrimination in voting could well be struck down by the Supreme Court, especially a Court lacking Justice O'Connor.

What should proponents of reauthorization do? (1) Slow down. (2) Craft a careful evidenitary record of intentional discrimination by states. (3) Explore potential bases for the exercise of congressional power that would withstand Supreme Court scrutiny. (4) Consider whether a narrower and more carefully crafted law might be worthwhile in order to save the law from judicial nullification.

Some Thoughts on Today's Shays v. FEC Decision

Not much of a surprise in today's D.C. Circuit ruling affirming the lower court in the Shays v. FEC case. Two more liberal judges (Edwards and Tatel) affirmed Judge Kollar-Kotelly's decision that the FEC's implementing regulations of BCRA were too lax, and Judge Henderson dissented. Judge Henderson was one of the three original judges deciding McConnell v. FEC, the main challenge to BCRA, and she had voted there that most of BCRA violates the First Amendment.

One notable aspect of the opinion is the extensive discussion of standing issues. Judge Henderson wrote a short opinion dissenting on the standing issue. But she did not reach the merits of the FEC rulemaking in the alternative. That was an interesting choice. Had Henderson done so and made persuasive arguments to uphold the FEC regulations on the merits, it might have increased the chances of the D.C. Circuit rehearing the case en banc.

On the merits, the FEC is already considering how to implement aspects of the district court's opinion by rewriting some of the regulations. (See, for example, here.) One of the main issues now is one of timing. The FEC is crafting new regulations, including the controversial internet regulations. Many of the new regulations are likely to be challenged in court, by the reformers if they are seen as too lax, and by the election lawyers and free speech groups if they are seen as too onerous. In the meantime, we are getting closer to the 2006 congressional elections, meaning we may go into yet another election period with unclear campaign finance rules.

The Chances of the Senate Going Nuclear Have Increased Greatly

With the Chief Justice's statement that he plans to stay on the Supreme Court as long as his health permits, it is now clear that President Bush will have no opportunity to pursue a two-seat strategy. This is too bad for the Senate as an institution. As I argued in The New Republic Online recently, the Chief Justice could have avoided a nuclear showdown in the Senate:

Enter the Chief Justice. By retiring now, he can create what might be called the "West Wing" scenario, which has already been discussed on some blogs. In an episode of the television series last year, the fictitious President Bartlett had two Supreme Court seats to fill. Despite his own liberal leanings, he filled one seat with a more conservative candidate and one with a more liberal candidate. The ability to negotiate with two seats allowed both candidates to get through the Republican Senate.

The same logic would hold in the real world. If Bush had two seats to work with, he would likely nominate a conservative to one seat and a more moderate nominee to the other. Democrats probably would not block a deal that preserves the Court's current balance of power. Indeed, preserving the status quo is about the best deal they can realistically hope for. For their part, conservatives would probably be happy with another Scalia or Thomas on the Court, even if that came at the price of a more moderate justice in the other seat.

If Bush instead picked two hardline conservatives to fill those seats, Democrats would have a stronger argument to make to the Republicans in the Gang of 14 that these would be "extraordinary circumstances" justifying a filibuster. Meanwhile, the public would probably favor maintaining the status quo on the Court, would view the Democrats' filibuster as reasonable, and would therefore be unlikely to countenance the nuclear option. In short, a Rehnquist retirement opens up greater space for political compromise in a Senate that is currently short on trust.

The Chief's statement has come as a relief to some. Doug Kmiec, for example, writes at National Review Online: "It should be of relief to us all, since it lessens what was becoming all too apparent — that every factor in the nomination process was going to use multiple vacancies to politically horse-trade to the ultimate disadvantage of the integrity of the Court."

I don't see how a horse-trade that preserves the current balance of power undermines the "integrity" of the Court, though it certainly would have made it less likely that the Court shifted to the right. But Kmiec's analysis ignores the harm to the Senate: the potential end of the Senate as a deliberative body. Those like Kmiec who are happy about the loss of the logrolling possibility think of the Senate in Court-centric terms, and that is a mistake. The Senate does much more than confirm judicial nominees, and now there is a fairly strong possibility that the "Gang of 14" agreement breaks down and we end up with a Senate in perpetual gridlock and acrimony.

D.C. Circuit Affirms District Court Ruling in Shays-Meehan Case Rejecting FEC BCRA Regulations

The opinion is here. Early Bloomberg story here; A.P. is here. Alison Hayward offers some analysis here. I'll have some analysis of my own later today.

Bauer on Mehlman on 527s

See here.

Thernstrom and Blum on Why Section 5 of the Voting Rights Act Should Not be Renewed

In today's Wall Street Journal, Abigail Thernstrom and Edward Blum write Do the Right Thing. (Thanks to Steven Sholk for the pointer.) A snippet:

Preclearance is no longer defensible. Another provision, known as section two, takes a more reasonable approach to the same problems preclearance was designed to address. This provision allows plaintiffs to initiate suits in any jurisdiction across the nation if they believe minority voters have "less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." But the burden of proof is on the plaintiffs and jurisdictions have an opportunity to defend themselves in a local court. DOJ career attorneys partial to plaintiffs will not be resolving disputes behind closed doors.

"Judge denies lawmakers' bid to join redistricting lawsuit"

A.P. offers this report, which begins: "SACRAMENTO (AP) - Democratic lawmakers won't be allowed to join the attorney general's lawsuit that seeks to strike a redistricting initiative from the November special election ballot, a judge ruled Thursday."

"Cunningham Announces He Will Retire at End of 109th Congress"

Roll Call offers this breaking news report (paid subscription required). "Rep. Duke Cunningham (R-Calif.), under fire for his dealings with a military contractor, announced that he will not seek re-election to a ninth term in the House following the end of the 109th Congress. Cunningham also plans to sell his house in San Diego and donate part of the proceeds to three local charities."

"Michigan Bucks McCain"

The Hill offers this report, which begins: "Michigan Republicans want to bar Democrats and independents from the GOP’s 2008 presidential primary — a step that would present a major hurdle for Sen. John McCain (R-Ariz.), should he decide to run for the White House in 2008."

"Mehlman Pushes for 527 Action"

Roll Call offers this report (paid subscription required), which begins: "The chairman of the Republican National Committee talked to GOP lawmakers on both sides of the Capitol this week about the strategic importance to the party of “addressing” the role of 527 organizations through legislation. In separate meetings with Republicans in the House and Senate, RNC Chairman Ken Mehlman outlined why he believes the independent political organizations pose a threat to GOP election prospects in 2006 and beyond if they are left unchecked." See also this report in The Hill.

"Perata, Núñez seek to join suit; Democrats taking aim at initiative on redistricting."

The Sacramento Bee offers this report.

"FEC Hears Bloggers' Bid to Share Media Exemption"

The Washington Post offers this report.

"Mayoral hopeful seeks to conceal donors"

The Seattle Times offers this report, with the subhead: "A socialist candidate for mayor of Seattle is asking the city Ethics and Elections Commission to conceal the names of his campaign donors from public disclosure."

"Mr. Smith Went to Washington; And he was something different at the FEC."

Byron York offers this column in the National Review.

Light Blogging Until July 14

See you then.

"Ohio's 'Coingate' Scandal: How It Exposes the Flaws of Our Campaign Finance System"

Dan Tokaji offers this Findlaw column.

"O'Connor departure may alter redistricting law"

Michael Barone offers these thoughts in US News and World Report.

"Twice Removed: Why Rehnquist Should Resign Now"

I have written this piece (free access, but registration required) for The New Republic Online. It begins:

As Chief Justice of the Supreme Court, William Rehnquist is used to wielding a great deal of power. But now Rehnquist, who has been battling thyroid cancer, is in an unparalleled position of power: He may be the only person who can prevent the Senate from losing its character as a deliberative institution and devolving into a second House of Representatives. And he can do so by making a decision to retire now from the Supreme Court.

It ends:

To be sure, it might seem beneath the dignity of the Chief Justice to base his retirement decision on these kinds of political matters. But justices almost certainly take partisan politics--namely, the ideological leanings of the president who would be appointing their successor--into account when making decisions about when to step down. The difference here is that instead of seeking to ensure his replacement with a like-minded conservative, Rehnquist would be seeking to protect the very process by which Supreme Court justices are confirmed.

Indeed, if Rehnquist passes up this opportunity to retire, things might only get worse. A retirement at the end of the next term would come just months before a congressional election, and fallout from the O'Connor replacement process--not to mention election-year politics--would inevitably cloud the confirmation. By 2007, we will already be entering a new presidential election season and the choice of Rehnquist's successor would be made by a president who already has one foot out the door. These are not palatable options for a sharply divided nation; all raise the likelihood of further dividing the Senate. Fortunately, one man can forestall these scenarios. But he needs to act now.

"Political Clout Pulls in Cash"

The Los Angeles Times offers this report, with the subhead: "Governor and state treasurer raise millions from donors doing business with California."

"Redistricting measure could drop off ballot"

The San Francisco Chronicle offers this report. Following my blog post on this yesterday, there have been some interesting messages on the election law listserv. See here, here, and here, with my response here.

Is the California Redistricting Initiative in Substantial Compliance With California law?

The Los Angeles Times article cited in my post below notes the following problems with the redistricting initiative: "according to backers of the initiative, it gives legislative leaders one day more than the Lockyer-approved version to select the retired judges who would draw the districts. In addition, the preamble of the initiative is condensed from five paragraphs to four in versions displayed by signature-gatherers on the street."

The question whether the initiative should be disqualified from appearing on the ballot appears to turn on whether the petitions were in "substantial compliance" with California law. Although backers of the initiative claim that it is, I am not so sure.

Here is a useful statement of the substantial compliance doctrine, from Ruiz v. Sylva, 102 Cal.App.4th 199 (2002):

The failure to provide information or the communication of misinformation--threaten the proper operation and the integrity of the election process. (San Francisco Forty-Niners v. Nishioka (1999) 75 Cal.App.4th 637, 642, 89 al.Rptr.2d 388.) No court has applied the doctrine of substantial compliance to save a petition that provides confusing or misleading information. (Clark v. Jordan, supra, 7 Cal.2d 248, 60 P.2d 457 [finding no substantial compliance where short title does not reveal initiative measure would affect taxes]; Mervyn's v. Reyes (1998) 69 Cal.App.4th 93, 104, 81 Cal.Rptr.2d 148 [omitting 17 pages of general plan section did not constitute substantial compliance]; Hebard v. Bybee (1998) 65 Cal.App.4th 1331, 77 Cal.Rptr.2d 352 [no substantial compliance where title of ordinance in referendum petition was inaccurate]; Ibarra v. City of Carson (1989) 214 Cal.App.3d 90, 99, 262 Cal.Rptr. 485["[w]here the purpose of the statutory requirement is to give information to the public to assist the voters in deciding whether to sign or oppose the petition, the substantial compliance argument is often rejected and strict compliance held essential"]; Creighton v. Reviczky, supra, 171 Cal.App.3d 1225, 1231, 1338, 217 Cal.Rptr. 834 [finding no substantial compliance where proponents increased confusion by excluding test of protested legislation].)

In contrast, the doctrine of substantial compliance has been applied where only the emphasis of the information presented is at issue. For example, in California Teachers Assn. v. Collins (1934) 1 Cal.2d 202, 34 P.2d 134, the registrar of voters refused to accept a petition because, in part, the short title was printed in 12 point instead of 18 point type, when section 1197b of the Political Code required that "across the top of each page after the first page of every initiative ... petition or section thereof ... there shall be printed in eighteen-point gothic type a short title...." (Id. at pp. 203-304, 34 P.2d 134.) The Supreme Court found "[i]n actual size there is a difference of but six-seventy-seconds of an inch. Only one with very poor eyesight would be unable to read a line printed in twelve-point type as readily as one printed in eighteen-point type." (Id. at p. 204, 34 P.2d 134.) "[W]e are of the view there has been a sufficiently substantial compliance with the statute to require him to accept and file the petition." (Ibid.; see also Othmer v. City Council of Long Beach (1929) 207 Cal. 263, 270, 277 P. 857 [finding substantial compliance where "there was nothing in the duplicate copies of the petition to mislead the electors, and there can be no doubt that each signer fully understood that he was signing a petition for the recall of the four councilmen"]; Chase v. Brooks (1986) 187 Cal.App.3d 657, 664, 232 Cal.Rptr. 65 [finding caption to be in substantial compliance with requirements].)
One reason to distinguish between information and emphasis when applying the substantial compliance doctrine is that only the latter is necessarily content neutral. Where the information is mischaracterized the electorate is misled, and the voter is unable to intelligently exercise his or her right to vote, the "sword of democracy." (San Francisco Forty-Niners v. Nishioka, supra, 75 Cal.App.4th at p. 643, 89 Cal.Rptr.2d 388.) On the other hand, where the only defect is that the typeface is not in strict compliance with the Elections Code, the voter may still be able to intelligently exercise **363 his or her right to vote. (See California Teachers Assn. v. Collins, supra, 1 Cal.2d 202, 34 P.2d 134.) "The law is clear that election officials have a ministerial duty to reject initiative petitions which suffer from a substantial, as opposed to a technical, statutory defect which directly affects the quality of information provided to the voters." (San Francisco Forty-Niners v. Nishioka, supra, 75 Cal.App.4th at p. 644, 89 Cal.Rptr.2d 388.)

From what I know of the distinctions between the actual text and circulated text of the initiative, it appears, especially under precedents like Mervyn's, that the courts would well hold the initiative should be disqualified.

Possible Technical Snag May Keep Redistricting Initiative Off the Ballot in California

The L.A. Times offers Initiative is Under Review; Version of redistricting measure on petitions was different from the officially approved one. I recall looking at this case law in California a few years ago, and I think that these minor discrepancies could cause real problems for the proponents of the initiative.

"The Lure of Easy Money in the House"

The New York Times offers this editorial on the Pence-Wynn campaign finance bill. Bob Bauer reacts.

Foley on O'Connor and Election Law

See here. A taste: "As has been widely noted over the last few days, Justice O'Connor's approach to deciding cases was characterized by razor-thin rulings that turned on the specific facts at hand. While this pragmatic, incremental approach may serve the nation well in other areas of law (notably abortion and affirmative action), it is quite problematic in the area of election law. In this field particularly, it is important that the outcome of a case be perceived as unaffected by which political party benefits from the outcome, and that appearance of impartiality is difficult to achieve when the outcome is so heavily fact-dependent."

Bauer on O'Connor and Election Law

Responding to my recent commentary for the New Republic Online, "Rock the Vote: O'Connor and Election Law," Bob Bauer writes: "For those who are troubled by the Court’s power, and even more by the manner in which, in recent years, it has been willing to exercise it, an 'inscrutable opinion' is hardly more than a judicial decree. The acceptability of decision-by-decree will depend entirely on whether we are happy with the outcome of the particular case—with where the Justice’s sense of Justice happened to take her."

"O'Connor a Maverick on First Amendment Cases"

Tony Mauro offers this analysis at the First Amendment Center.

"Recall Star Takes Remap Risk"

The Dallas Morning News offers this report, which begins: "Amid recent polls showing Arnold Schwarzenegger's star power dropping from the top of California's political marquee, the governor's push to redraw congressional and legislative district lines mid-decade isn't looking like this summer's Republican blockbuster."

"Voter ID Remains Prop. 200 Roadblock"

See this report from Arizona, which begins: "Gov. Janet Napolitano could block efforts by two top state officials to finally implement the voter identification provisions of Proposition 200."

"'Electing Justice': The People's Court"

Ann Althouse reviews Richard Davis, "ELECTING JUSTICE: Fixing the Supreme Court Nomination Process," in the NY Times Book Review. The review begins: "WHEN a president announces a new Supreme Court nominee, he may say he has selected the best person for the job, but nobody really believes him. The nominees present themselves as sober, worthy expositors of legal principle, but their supporters resort to press-friendly life stories of struggles through poverty and oppression, and opponents and proponents alike grandstand on the same kind of hot-button issues -- notably abortion -- that they use to grab the public's attention in political campaigns. In his new book, ''Electing Justice,'' Richard Davis, a professor of political science at Brigham Young University, argues that the process of selecting Supreme Court justices, originally intended as an elite interplay between the president and the Senate, has become so politicized that we ought to cast off the remnants of elitism and simply hold elections for justices. "

"Vacancy Starts a Fundraising Race; Court Nomination Battle Could Rival 2004 Election's Totals"

The Washington Post offers this report, which begins: "The effort to fill the Supreme Court seat being vacated by Justice Sandra Day O'Connor has already become a fundraising magnet for both left and right that promises to rival the 2004 presidential campaign for the rate of cash flow, if not total dollars raised."

"Boat sale by 'Duke' made him $400,000"

The San Diego Union-Tribune offers this report, which begins: "Rep. Randy 'Duke' Cunningham made roughly a $400,000 profit by selling the boat he lived aboard in the nation's capital from 1997 to 2002 to a businessman convicted in a bid-rigging scheme. The man said he subsequently got advice from Cunningham about how to pursue a presidential pardon from the Bush administration."

"O'Connor and Election Law: Rock the Vote"

I have written this commentary for the New Republic Online (free pass-through link, but registration required). It begins:

No doubt the coming Senate hearings to confirm Sandra Day O'Connor's successor will focus on hot-button issues like affirmative action and abortion. This is understandable, of course, since O'Connor's replacement with a more conservative justice could mark a change in direction for the Court on these topics--two years ago, for instance, she granted a twenty-five year reprieve to affirmative action programs, and a few years before that she was the decisive vote in striking down state bans on partial birth abortion.

But while these issues will grab the headlines, O'Connor's departure from the Court could have equally startling consequences in an area of the law that may not even come up during the Senate hearings: election law. It is possible, even likely, that her resignation will lead to both the deregulation of campaign financing and a serious challenge to major parts of the Voting Rights Act. Such changes would, in turn, mean radical shifts in the way elections are conducted in the United States.

And it ends:

And while O'Connor has sometimes frustrated voting rights activists, she has, more often than not, in recent years been a crucial vote to allow Congress leeway to promote political equality. True, she has sometimes left those of us who study the field scratching our heads as we try to make sense of her inscrutable opinions--and as of now, we will no longer have to wonder whether U.S. election law depends on what Sandra Day O'Connor had for breakfast. But the benefits of certainty could come at a serious price.

ALJ Reverses North Carolina Board Ruling that RGA Ads Had Electioneering Purpose

This is going to be a very interesting case to watch.

Rossi Defends His Statement on the Inability to Get a Fair Hearing in Election Challenge Before Washington Supreme Court

See here.

PFAW Notes that Campaign Finance Reform May Be at Stake with O'Connor Replacement

See here.

Hayward on Kelo and the FEC Internet Rulemaking

See this NRO Online column.

Express Advocacy Lives (As a Matter of Statutory Interpretation)

See this decision of the Minnesota Supreme Court, which answers the following question (reformulated from a certified question from the 8th Circuit): "Whether the use of the phrase “to influence the nomination or election of a candidate or to promote or defeat a ballot question” and related phrases in Minn. Stat. § 10A.01, subds. 27 and 28, may be narrowly construed to limit the application of those statutes to groups that expressly advocate the nomination or election of a particular candidate or the promotion or defeat of a ballot question."

With O'Connor Retiring, It Makes Sense for the Chief to Retire Too

As Howard points out, because of Justice O'Connor's position as a swing vote on the Court, the battle over appointing her successor could be fierce. Note the opposition to Alberto Gonzales following the rumor of an O'Connor retirement.

If the Chief retires now too, then two confirmations could be sold as a package: one, more conservative, to replace the Chief, and one more moderate (or perhaps simply of unknown qualities) to replace Justice O'Connor.

If the Chief waits, there will be two separate, bitter confirmation battles, and they could take place during the runup to the 2006 elections, when things will be even more politicized.

So I would not discount the possibility of a second retirement announcement coming very soon.
UPDATE: Lyle Dennison has a different view on this question.

Is Justice O'Connor About to Retire?

See here and here. UPDATE: This is now confirmed on the NYT's web page. See my post on June 22 with this rumor and the Justice's possible replacement. UPDATE 2: See this A.P. report.