Another Benefit of Campaign Finance Disclosure

It apparently deters money laundering. See Judge Is Charged in Money-Laundering Case in the NY Times.

Thernstrom and Blum Send Letter to Judiciary Committee on Roberts and VRA

You can find the text of the letter here. It follows up on my letter sent to the Committee on this topic last week.

"Fear, pressure seen in fundraising scandal"

The San Francisco Chronicle offers this report, which begins: "Business associates of San Francisco real estate agent and political fundraiser Julie Lee say it was their desire to maintain good relations with the local powerbroker that led them to become players in a campaign finance scandal that drove former Secretary of State Kevin Shelley from office and led to Lee's arrest on state and federal fraud charges."

Lawyers' Committee Statement on DOJ Preclearance of Georgia Voter ID Law

See here.

"Signatures expected to exceed number needed"

A.P. offers this report, which begins: "COLUMBUS, Ohio - Three proposals to change election law have tentatively exceeded the number of signatures needed to be placed on the Nov. 8 ballot, leaving it up to an appeals court to decide whether backers legally collected the signatures."

"2 elections officials indicted in recount"

The Cleveland Plain Dealer offers this report. It begins: "Two Cuyahoga County elections officials were indicted Tuesday on charges of not handling ballots correctly during the recount of the 2004 presidential election."

Next time you are sending out reprints...

you might consider stamps commemorating the Voting Rights Act and other civil rights milestones.

Mason and Toner Issue Concurring Opinion in Berman-Doolittle Matter

I have posted the document here. The opinion addresses an important legal question about the ability of federal officeholders to raise funds for state initiative contests, including those (as in the Berman-Doolittle case) involving proposed changes to the redistricting process. The Mason-Toner opinion begins:

We joined the Commission's ruling today because the activities presented by the requestors do not implicate the ban on soft-money fundraising under Section 441i(e).

The threshold legal question in deciding whether Section 441i(e)’s fundraising restrictions apply is whether the activities in question are in connection with an election. Sections 441i(e)(1)(A) & (B) prohibit Federal officeholders and candidates from soliciting, receiving, directing, transferring, or spending funds outside the prohibitions and limitations of the Act, but only in connection with an election for Federal office or in connection with any election other than an election for federal office. Both statutory provisions are expressly limited to elections for office. The plain meaning of the statute is that the soft-money ban applies to federal and non-federal elections for public office, but does not apply to non-candidate political activity, such as ballot initiatives and referenda. Any other interpretation would render the statutory reference to “office” in Sections 441i(e)(1)(A) & (B) a nullity. Commission regulations likewise define election as limited to candidate elections. See 11 C.F.R. §100.2(a) (defining election as the “process by which individuals…seek nomination for election, or election, to Federal office”). In light of the foregoing, ballot initiatives and referenda are not elections for office as a matter of law under Section 441i(e) and, therefore, the statute’s soft-money fundraising restrictions do not apply to ballot measure activities.

Alliance for Justice Issues Extensive Report Opposing Judge Roberts

You can find the report here. The portion dealing with the Voting Rights act appears on pages 36-40 of the report.

Additions to the Blog Roll

On the right hand side of the blog, I have added links to the following blogs under “Election Law Resources:” Earlyvote (Paul Gronke) (This blog disseminates information about early voting (voting before election day, at non-precinct locations), an increasingly common form of voting in the United States, and worldwide. The blog is intended to be a resource to the election administration, reform, and research community.); Election Updates (Mike Alvarez and Thad Hall) (New research, analysis and commentary on election reform, voting technology, and election administration); Skeptic's Eye (Allison Hayward) (an attorney who writes about campaign finance and related (and unrelated) issues of interest.); and Soapbox (Robbin Stewart) (an election law blog). Under “Other Blogs of Interest to Election Law,” I have added links to Disability Law (Sam Bagenstos); Barone Blog, Michael Barone’s new blog; and Beltway Blogroll (Danny Glover for the National Journal). In addition, I have added more blogs related to the Supreme Court nominations process: Alliance for Justice Supreme Court Watch; Bench Memos (National Review Online); Campaign for the Court blog (Washington Post); and LiveCurrent (Los Angeles Times Supreme Court blog).

UPDATE: I meant to include Randy Riddle's California Election Law blog as well on my list of new links.

Light Blogging for the Rest of the Week

I'm off to APSA, presenting my paper on election administration reform Thursday (see here). Blogging will be light through Labor Day.

"It's About Fraud, Not Jim Crow"

Frank B. Strickland and Anne W. Lewis offer this Washington Post commentary, responding to David J. Becker's recent oped.

Bauer on the Georgia Voter I.D. Requirement and Fraud

See here.

"High court hears recount dispute"

A.P. offers this report from New Mexico.

"I.D. and Voting Rights"

Tova Wang offers this commentary in Mother Jones, with the subhead: "Laws requiring voters to present very specific forms of ID are becoming the voting rights barrier of the 21st Century."

"Andrew Gumbel: All I did was say they can't run a fair election"

Andrew Gumbel, whose book was the subject of Paul Krugman's column last week, has written these thoughts for The Independent Online Edition.

A Brief Mention of Voting Rights in Roberts' Papers released today

See page 2 of this pdf released by the National Archives.

Blog access problems

If you had trouble accessing the blog over the last few days, the problem was on this end. All should be working now.

FEC Petitions for En Banc Rehearing in Shays v. FEC

See this A.P. report. The agency issued this press release.

"Redistricting initiative too wordy for the ballot"

The Tallahassee Democrat offers this report, with the subhead: "Summary longer than 75 words."

"Feds OK Georgia law requiring photo ID to vote"

The Chicago Sun-Times offers this report. Dan Tokaji offers his thoughts, and the ACLU issued this press release.

"For 40 years, voting act has mandated fair polls"

Monica Leas writes this column in the Arkansas Democrat Gazette.

"New Mexico court hears recount dispute"

A.P. offers this report, which begins: "SANTA FE, N.M. - The state's highest court must decide if New Mexico wrongly handled a recount request from two presidential candidates by requiring them to pay $1.4 million as a security deposit."

"Still Soft on Campaigning"

NY Newsday offers this editorial, with the subhead: "No hope for regulating contributions until the election commission is out."

"The Soft Money Ban"

FEC Vice Chair Michael Toner had this letter to the editor in yesterday's NY Times.

"Nebraska in the Lead"

The NY Times offers this editorial, which begins: "The United States stands virtually alone among democracies in having laws that continue to disenfranchise former prisoners even after they have paid their debts to society and finished parole or probation. A vast majority of the nearly five million citizens who were barred from voting in the last presidential election would have been free to vote in Australia, Britain, France and Canada."

"A Fair Count for Congress"

See this editorial from the Grand Rapids Press. Thanks to Jeff Wice for the pointer.

"Shut Up and Vote"

I was reminded of Jim Gardner's wonderful article with that title when I read this article from Florida, which begins: "After deciding to readdress single-member districts, Kissimmee city commissioners have been advised not to talk about the topic because of a pending federal lawsuit. "

Letter to Sens. Specter and Leahy regarding Tennessee v. Lane and the Voting Rights Act

Yesterday Senator Alren Specter, chairman of the Senate Committee on the Judiciary, sent this letter to Judge Roberts indicating that Senator Specter intended to ask Judge Roberts about his views on the Supreme Court's recent federalism case, Tennessee v. Lane. I have just sent this letter to Senator Specter and ranking minority member Senator Patrick Leahy calling to their attention the fact that the vitality of Tennessee v. Lane is very relevant to the question of congressional power to uphold a renewed section 5 of the Voting Rights Act. The letter notes that Judge Roberts' past writings on the Voting Rights Act give special reason for concern that he would not follow Justice O'Connor's position in Tennessee v. Lane as precedent for upholding a renewed section 5.

I urge the senators to explore this topic with Judge Roberts at the hearing, as well as the topic of campaign finance regulation. Justice O'Connor recently has cast decisive votes in this area as well.

Pushing the FEC on the Press Exemption for Blogs

Don't miss this post by Adam Bonin at Daily Kos.

With the expiration of terms of four commissioners at the FEC, we will be seeing essentially a new FEC considering this issue when the Advisory Opinion eventually issues.

I'll have more to say about this at a later date, but I think this AO request is a good thing all around. I have been telling reporters that I expect the FEC, as part of its Internet rulemaking, to issue no rules or unclear rules related to which corporate-owned blogs will be entitled to the press exemption (or another exemption). Without clear guidance from the FEC, it seems inevitable that someone will file a complaint against a corporate owned blogger engaged in express advocacy during the 2006 elections. That prospect alone could seriously chill free speech.

An AO from the FEC will be the first step toward clarifying the rules related to political blogging for 06 and 08. I expect that this issue will ultimately be resolved by the courts. It is also possible it will be resolved by Congress, as I would expect Congress to create a pretty wide Internet exemption by statute if it passes any other campaign finance bills this term.

"Mr. Smith Leaves Washington"

Don't miss this very interesting piece by John Samples in the American Spectator on departing FEC commissioner Brad Smith.

PFAW Issues Opposition to Roberts; Analyzes Voting Rights Issues

You can find the relevant portion of the report at this link.

"Nonprofits Cloak Donations to Governor"

The LA Times offers this front-page report, with the subhead: "Tax-exempt groups provide millions from sources not made public. Ethics watchdogs say the practice avoids state disclosure laws."

Election 2004 Finally Over(?)

See here.

"Voting Rights Act should be amended"

The Arizona Republic offers this editorial. It ends:

At this point, there's no justification for subjecting the election procedures in Arizona and the other political jurisdictions currently under the preclearance requirement to greater federal scrutiny than those in the rest of the country. Yet supporters of the Voting Rights Act oppose making the preclearance requirement universal or permanent, fearing that would run afoul of the Supreme Court, which from time to time frets about all the race-consciousness in the act.

So, will Arizona's congressional delegation - which consists entirely of Anglo Republican and Latino Democratic politicians who face less electoral competition as a result of race-conscious political boundaries - lead a fight to remove Arizona from this unjustified, unwarranted and discriminatory federal scrutiny of our election procedures?

Don't count on it.

"Appeals court grants expedited review of primary lawsuit"

A.P. offers this report, which begins: "OLYMPIA, Wash. -- An appellate court on Monday granted a fast-track review of a federal court decision striking down the popular 'Top Two' primary system that state voters approved by initiative last fall." Thanks to Steven Rankin for the pointer (see his post on Mississippi's primary system).

"Judge Rules in South Dakota Redistricting Case"

Native American Times offers this report.

"Another scandal that's just waiting to be ignored"

Joshua Spivack offers this oped. A snippet: "In the current controversy, the state's Court of Appeals removed Brooklyn Surrogate Court Judge Michael Feinberg after he was found to have given almost $8.5 million in estate fees to one of his law school buddies, Louis Rosenthal, without ever seeing paperwork showing that the money was earned. Feinberg also routinely granted Rosenthal commissions higher than the state norm, resulting in approximately $2 million in excessive charges - all paid out from money that was rightfully the property of the heirs. Feinberg's behavior might be the most egregious example of Surrogate Court abuse, but it is hardly the only one. The Democratic boss of Queens, Thomas Manton, has been attacked for having his law firm profit off that borough's Surrogate Court administrator's office to the tune of $1 million."

"More Incumbent Protection"

The Orange County Register offers this editorial on the FEC's recent decision to allow fundraising by members of Congress in connection with Proposition 77.

"6 words may block overhaul of redistricting"

The St. Petersburg Times offers this report, with the subhead: "A citizen initiative to keep lawmakers out of the process has 81 words. The limit is 75."

"Early voting is no joke"

Mark Brown offers this Chicago Sun-Times column. Those readers interested in this topic should check out Paul Gronke's Early Vote Blog.

In the Election Law Mailbag

I have just received a copy of Tara Ross, Enlightened Democracy: The Case for the Electoral College (2004). Amazon's description: "Opponents of the Electoral College are swift to dismiss the institution as outdated and elitist, an anachronism that should be replaced by a direct popular vote. This book, written in straightforward language, examines the institutions role in selecting Presidents across the centuries and comes to a different conclusion the Electoral College protects our republic and promotes our liberty."

"Speicial Prosecutor Subpoenas Election Workers"

The Cleveland Plain Dealer offers this report, which begins: "A special prosecutor investigating charges of illegal conduct in election recount last December has subpoenaed employees of the Cuyahoga County Board of Elections."

"The Corruption Commission"

James Sample of the Brennan Center has written this oped at Tompaine.com on filling four vacancies at the FEC. Meanwhile, this looks like the perfect gift for departing FEC commissioner Brad Smith.

More Krugman on Election 2000

Today's column is called "Don't Prettify Our History." It begins:

The 2000 election is still an open sore on the body politic. That was clear from the outraged reaction to my mention last week of what would have happened with a full statewide manual recount of Florida.

This reaction seems to confuse three questions. One is what would have happened if the U.S. Supreme Court hadn't intervened; the answer is that unless the judge overseeing the recount had revised his order (which is a possibility), George W. Bush would still have been declared the winner.

The second is what would have happened if there had been a full, statewide manual recount - as there should have been. The probable answer is that Al Gore would have won, by a tiny margin.

The third is what would have happened if the intentions of the voters hadn't been frustrated by butterfly ballots, felon purges and more; the answer is that Mr. Gore would have won by a much larger margin.

"Dan Walters: Congressmen can raise big bucks to fight redistricting reform"

See this Sacramento Bee column.

"South Dakota heads for the Supreme Court on voting rights"

Indian Country Today offers this report.

Voting Rights, Voter I.D. and Jim Crow: Two Perspectives

For those wanting to seek forceful arguments on both sides of the debate over voter identification (and the Department of Justice's pending decision on Georgia's voter i.d. requirement), today is the perfect day. John Fund, writing for the Wall Street Jounral, offers Resurrecting Jim Crow for Political Gain; Voter fraud is also a threat to minority voters. Former Justice Department attorney (and current election consultant) David J. Becker writes Reviving Jim Crow for today's Washington Post. A snippet: "There is also considerable evidence that photo ID requirements have a disproportionately negative impact on blacks and other minorities. ...The law's proponents claim that it will help protect against voter fraud, but there appears to be no evidence to support this claim."

OSU Conference on Independent Election Administration

Election Law @ Moritz is holding a two day conference, Independent Election Administration: Who Draws the Lines, and Who Counts the Votes?, on September 9-10. Here is the description:

During the 2004 election, the issue of independent election administration repeatedly emerged as a topic in need of concentrated study and attention. On a number of occasions in many states, questions arose about the appropriate roles of elected secretaries of state in the implementation of voting laws and the supervision of the polling places, and whether these election administration duties might or should be conducted by nonpartisan or bipartisan entities. Meanwhile, lurking beneath the surface of many of the 2004 congressional and state legislative races were questions about how the district boundaries had been drawn, and the impact of the redistricting process on political competition and the public policy debate. This two-day Election Law @ Moritz conference will bring together public officials, academics, elected representatives, members of the media, and interested observers to discuss the prospects for reinvigorating our democracy through reforms in both the drawing of political districts and the administration of the voting process.

See here for more information, a list of participants, and a schedule.
According to Dan Tokaji, one of the organizers, space is limited, but anyone interested in attending should contact Steve Huefner at huefner.4-at-osu.edu, or Dan at tokaji.1-at-osu.edu.

Krugman on Election Problems in 2000 and 2004

In his NY Times column today on election problems in 2000 and 2004, Paul Krugman, relying on a new book by Andrew Gumbel, says that Gumbel "documents the simple truth: 'Al Gore won the 2000 presidential election.' Two different news media consortiums reviewed Florida's ballots; both found that a full manual recount would have given the election to Mr. Gore. This was true despite a host of efforts by state and local officials to suppress likely Gore votes, most notably Ms. Harris's 'felon purge,' which disenfranchised large numbers of valid voters."

I have not yet had a chance to read Gumbel's book, but Krugman's statement is misleading. It is true that the NORC study found that had all the state's undervotes and overvotes been counted, Al Gore would have come out ahead of George Bush. But it is also true that Gore did not request such a count---he requested a count only of the undervotes, and only in certain counties. And, if I recall correctly, a statewide recount of the undervotes (what had been ordered by the Florida Supreme Court but stopped by the U.S. Supreme Court in its stay order in Bush v. Gore) also would have gone for Bush. It is also true that the NORC counters' views of which ballots counted for Gore depended in part on the partisan affiliation of the counters. (I review the literature on the count in this review essay.)

So what to make of the claim that Al Gore "really" won the election? I have a few reactions (again, not based upon anything new that might be in Gumbel's book):

1. It seems pretty clear, as Judge Posner acknowledged in his "Breaking the Deadlock" book, that more Florida voters intended to vote for Gore than for Bush. But not all of those voters translated their private intent into a valid vote that could be accurately counted using Florida's then-existing voting technology.

2. For all practical purposes, the Florida count was a statistical tie. Various commentators have summed the problem up by noting that the margin of error exceeded the margin of victory, or that counting the votes to get an accurate count was like trying to measure bacteria with a yardstick.

3. Given that the election was a statistical tie, one can point to a whole host of things that, had they gone slightly differently, would have likely put the election in Gore's hands. Among the more important "what ifs": (a) What if there had been no "butterfly ballot" in Palm Beach County? (b) What if Ralph Nader had not run, or been so successful in Florida, or had Nader voters known what was at stake with their votes? (c) What if a Democrat or a nonpartisan election official had been secretary of state? (d) What if overseas military ballots had been counted pursuant to Florida law as it existed in 2000 (on this point, one should not miss Diane Mazur's recent Election Law Journal article)? (e) What if there had been no errors in the purge of felons from Florida ballots? The list goes on.

4. From all of this, I don't think the question of who "really" won Florida (opposed from the legal conclusion that Bush won) is one that can be answered in any sensical way.

Krugman also makes claims about the vote being stolen in Ohio in 2004. From what I have seen so far (including the Conyers report), I am not convinced that intentional action by state officials cost John Kerry the vote in Ohio.

Comparing Redistricting in Australia and the U.S.

The Democratic Audit of Australia has posted Revising Constituency Boundaries in the United States and Australia: It Couldn’t be More Different by Richard Engstrom.

"JUDICIAL RACES, LITIGATION LIKELY TO HEAT UP"

The ABA Journal E-Report offers this story, with the subhead: "En Banc 8th Circuit Overturns Bans on Partisan Activities and Solicitation of Contributions." Thanks to Steven Sholk for the pointer.

"Prop 77 and the Governor's Lawyer"

John Myers has this interesting post on the Capitol Report weblog.

"Panel told contribution limits likely constitutional"

A.P. offers this report, which begins: "HARTFORD, Conn. -- National campaign finance experts have told a legislative task force that a state ban on campaign contributions from lobbyists and state contractors would likely be upheld by the courts."

"Stage Set for Fundraising Free-for-All"

The Los Angeles Times offers this front-page report, with the subhead: "California congressmen can now raise unlimited amounts to oppose the governor's redistricting measure. There are national implications."

Sen. Kennedy on Judge Roberts Views of the Voting Rights Act

From this Washington Post oped:

The records of these 16 cases have become all the more important because of publicly released information about Roberts's policy views during an earlier time. As a young but high-ranking political appointee in the Reagan administration, Roberts was involved in, among other things, setting policy on issues of civil rights -- including those as fundamental as the right to vote and to be free from discrimination based on race, gender, national origin and disability. If Roberts continues to hold the views he appears to have expressed in the early 1980s, then his views on civil rights are out of the mainstream, and the people have the right to know that.

Specifically, and contrary to the intent of overwhelming majorities in both the House and the Senate, it appears that Roberts proposed a very narrow and crabbed interpretation of the Voting Rights Act that would essentially eviscerate the meaning of that law. Fortunately, his view did not prevail. But if a nominee to the Supreme Court believes in such a strained and narrow interpretation of such a fundamental right, then I believe he is not qualified to serve in that important position. The information we have requested from the administration would give us a more in-depth understanding of Roberts's views on this key civil rights issue, and we are entitled to it.

Video of ACS Panel on Election Law

You can find it here. The panel features Robert F. Bauer, Chair, Political Law Group, Perkins Coie; Jacqueline A. Berrien, Associate Director-Counsel, NAACP Legal Defense and Education Fund, Inc.; Bobby R. Burchfield, McDermott Will & Emery; Heather Gerken, Professor of Law, Harvard Law School; and Samuel Issacharoff, Professor of Law, NYU Law School.

Virginia Party Case Goes Forward

Thanks to a reader for passing on this complaint in Miller v. Brown, challenging the right of Democrats to vote in the 2007 Republican primary in Virgina.

Voting Rights Scholars File Letter on Georgia's Preclearance Request for its New Voter I.D. Law

You can find the letter signed by Adam Cox, Heather Gerken, Michael Kang, Spencer Overton, and Dan Tokaji here, with a summary here.

"Cutting on the Bias: Do We Need All This FEC Regulation?"

Allison Hayward offers this commentary at Personal Democracy Forum.

FEC Votes to Allow Fundraising by Members of Congress to Oppose Ballot Initiative on Redistricting

The A.P. story is here.

So Far Nothing New in Judge Roberts' Papers at Reagan Library Related to Election Law Issues

This morning I went to the Reagan library to look at some files I had identified on the finding aid as potentially relevant to Judge Roberts views on election law issues. (As readers of this blog know, there is a great deal of information on Judge Roberts' views of the Voting Rights Act, from Roberts' earlier time in the Reagan administration's attorney general's office, working on legislation to amend the Act in 1982.)

As with the recently released file on "Texas redistricting," I did not find anything of interest in files on "campaign finance reform (G. Ferarro)" "D.C. (nonpartisan elections)" or "fundraising." The campaign finance reform files contained a transcript of an ABC news show in which Sen. Ferraro was questioned about her finances and related FEC reports [Correction: I meant to write House committee reports, and Ferraro was a member of Congress, not a Senator], along with a transcript from a House hearing at which Sen. Ferraro testified. The D.C. file contained Roberts' response to a suggestion to move D.C. municipal elections to a nonpartisan basis, so as to aid Republicans getting elected in the District. Roberts wrote a memo finding such elections contrary to home rule for D.C., and unlikely to be approved by Congress or the D.C. municipality. The fundraising file concerned various attempts to get President Reagan to donate or participate in fundraisers.

Judge Roberts views on the Voting Rights Act are already on the agenda for civil rights groups to discuss. Without any paper trail on campaign finance, the issue might not be brought up at the hearings. But that would be a mistake. As I have explained, Justice O'Connor was the swing vote upholding most of the McCain-Feingold law, and I would be quite surprised if a Justice Roberts were as willing as Justice O'Connor to vote to uphold as many of the kinds of regulations as she voted to uphold. A Washington Post editorial mentioned this issue early on (see here), but I have read little about it in the press since then.

"Lawmakers Driven to Stop Special Election"

A.P. offers this report, which begins: "Two California House members from opposite parties are asking a federal elections panel for permission to raise unlimited money to oppose Gov. Arnold Schwarzenegger's redistricting measure." Bob Bauer provides more coverage at his site.

"The vote is first priority"

Adrian Walker writes this Boston Globe oped on voting problems in Boston.

Does California's New Secretary of State Not Know that Making Section 5 of the Voting Rights Act Permanent May Doom Its Constitutionality in the Supreme Court?

Apparently not. Here is a snippet from this oped in the SF Chronicle by Bruce McPherson:

In 2002, Congress passed, and President George W. Bush signed, the historic Help America Vote Act to ensure all eligible Americans the right of access, accuracy, independence and privacy in voting. But a cloud of uncertainty still hangs over these precious rights as Congress travels around the nation to hold hearings on the reauthorization of the Voting Rights Act. It should save time, energy and airfare and just vote to extend the act permanently.

"Prop. 77 alive, has our backing"

The Pasadena Star-News offers this editorial.

"Jewish groups decry election set for holiday"

The Orange County Register offers this report, with the subhead: "Primary vote for Cox's seat falls on Oct. 4, first day of Rosh Hashanah."

"California Supreme Court is Making a Mess of California's Initiative Law"

The title of this post is what I would have named my commentary in today's Los Angeles Daily Journal (reprinted with permission). The editors there gave it the title, "Redistricting Measure Doesn't Belong on the Ballot," which misses my point. My article begins:

In two cryptic rulings issued in the last few weeks, the state Supreme Court has made a mess of the law governing the initiative process. The result is going to be more lawsuits and greater injection of judges into the political thicket. If the court does not act soon to clarify the law, the Legislature should step in and help fix the problem.

Another Interesting APSA Panel

See this panel on Early Voting and the 2004 Election.

My article on Congressional Power to Renew Section 5 Now Available

It does not appear to be on Westlaw or Lexis yet, but you can download a pdf of the final version of my article, "Congressional Power to Renew Section 5 of the Voting Rights Act After Tennessee v. Lane," 66 Ohio State Law Journal 177 (2005) at this link. A revised and updated version will appear in The Future of the Voting Rights Act (Russell Sage, Epstein, de la Garza, O'Halloran, and Pildes eds., forthcoming 2006).

"Don't tolerate election interference"

The Seattle Times offers this editorial, which begins: "A King County Superior Court ruling last week struck a blow for Washington state's values of transparent campaign financing." Thanks to C.E. Petit for the pointer.

"Peter Schrag: Prop. 77: Off again, on again, gone again, Finnegan"

See this Sacramento Bee column.

"Lockyer Overruled"

The Wall Street Journal offers this editorial (pass thru link), which begins: "California's Supreme Court decision Friday to restore a redistricting measure to the November special election ballot is bad news for state Attorney General Bill Lockyer, who was trying to have it removed on a technicality. But the ruling is very good news for anyone fed up with the state's rigged system for electing lawmakers." Thanks to Steven Sholk for the link.

"Suit challenges reformers' petitions"

The Toledo Blade offers this report, which begins: "An organization seeking to prevent a proposed constitutional amendment overhauling Ohio election law from reaching the ballot filed a second lawsuit yesterday, this time challenging petition circulators." Another snippet: "Also yesterday, the Ohio Ballot Board, controlled 3-2 by Republicans, crafted the language voters would see on the ballot, expanding what was proposed to be three questions into four. The board is chaired by Secretary of State Ken Blackwell."

Petition for Cert Filed in Florida Felon Disenfranchisement Case: WWRD (What Would Roberts Do)?

Lyle Denniston (of SCOTUSBLOG) offers this useful post on the status of Johnson v. Bush (upholding Florida's felon disenfranchisment law against constitutional and Voting Rights Act section 2 challenges) and similar cases in the Second and Ninth Circuits.

Assuming Judge Roberts is confirmed, this may be one of the first test of his views of the Voting Rights Act. Based on everything I have seen about Judge Roberts' views of section 2, I find it very difficult to believe he would interpret section 2 to cover felon disenfranchisement absent evidence of discriminatory purpose (though that issue is indeed presented in the Florida case). We know he opposed the broad effects test from section 2, and, as I noted here, he fought to have section 2 interpreted as narrowly as possible once it was passed. As I noted:

In this memorandum to Ken Starr (see page 2 of the pdf), Roberts recommended that the DOJ intervene in a voting rights case in Chicago, writing: "it is critical that the Department participate in the developing process of giving meaning to the vague terms of the new section 2, and help courts avoid the outcomes we argued against and which the proponents of an amended section 2 assured us were never intended."

The liberals on the Court could vote against cert. in this case, out of fear of creating a national precedent that would narrow the reach of section 2. A cert. denial at least keeps the Ninth Circuit's case alive for now.

ASPA Meeting

I'll be presenting my forthcoming Washington and Lee paper on election reform at the American Political Science Association annual meeting on September 1 in Washington, D.C. The rest of the panel looks very interesting. See here. Unfortunately, the panel meets at the same time as this one on the judicialization of electoral politics. I'll also be gone by Saturday, when this interesting campaign finance panel and this interesting redistricting panel convene. Redistricting junkies also would not want to miss this panel, except for the fact that it is scheduled for 8 am Sunday morning.

Roberts' Documents on Texas Redistricting

One of the John Roberts files released yesterday by the Reagan Library was labeled "Texas Redistricting." I have obtained a copy of the file and posted it here. The file contains correspondence related to how the Justice Department handled preclearance requests in 1982 and 1983 concerning Texas redisticting. I did not see anything there that sheds light on Judge Roberts' views on preclearance or on redistricting more generally, but you can look for yourself.

California Special Election and Redistricting News

Via Rough & Tumble, the following articles and commentaries on the special election and Proposition 77 appeared today:

Gov., Lawmakers Still Miles Apart on Ballot Measures (LA Times)

New districts possible for June 2006 vote If Prop. 77 passes, secretary of state sees quick implementation (SF Chronicle, noting that this was "an abrupt shift of direction" for McPherson) -- in somewhat related news, the Sacramento Bee offers McPherson might run: Details later

Daniel Weintraub: Now the real debate over Proposition 77 can begin (Sacramento Bee) --- I agree with Weintraub that the Prop. 77 issue before the California Supreme Court was a "close one," though I don't think he's right that "Historically, the courts have given wide latitude to the initiative process, letting a wide range of mishaps go as long as sponsors have 'substantially complied' with the law." I'll be writing more about this soon.

Jack Kemp Supports Renewed Section 5 of the Voting Rights Act

Over at Town Hall, Jack Kemp writes The Voting Rights Act Turns 40. A snippet:

Section 5, the so-called "temporary" or "special" provisions, which gave the federal government extraordinary "emergency" powers to eliminate voter discrimination, even had to be used in some parts of the North. This part of the statute required nine states and 66 counties in seven others with a long history of voter discrimination to pre-clear all voting procedures and laws, including redistricting plans and moving a polling station, with the U.S. Department of Justice. That section originally was intended to last no more than about five years because of its extraordinary nature, in effect pre-empting the Constitution's vesting of voting laws and procedures. I agree with Lewis, however, that problems remain, and Section 5 should be reauthorized in 2007 when it expires.

See also this oped by Kent Willis.

Patterico Responds

Following up on this post, Patterico responds.

How Would a Justice Roberts Vote on the Constitutionality of a Reauthorized Section 5?

In my recent L.A. Times oped, I wrote about Judge Roberts' views on the 1982 Voting Rights Act amendments. He strongly opposed efforts to expand the Act to make it easier for members of protected minority groups to prove claims of vote dilution:

In these documents, Roberts wrote that the new Section 2 would "establish a quota system" and "provide a basis for the most intrusive interference imaginable by federal courts into state and local processes." He added that it "would be difficult to conceive of a more drastic alteration of local government affairs."

Imposing the new Section 2 nationwide, he concluded, would be "not only constitutionally suspect, but also contrary to the most fundamental [tenets] of the legislative process on which the laws of this country are based."

I concluded that these views provide a good indication that if Judge Roberts is confirmed to the Supreme Court, he would well cast the deciding vote holding that a reauthorized section 5 goes beyond Congressional power under the Court's recent federalism jurisprudence. I concluded:

Roberts' writings, on the other hand [i.e., compared to Justice O'Connor's vote recently in Tennessee v. Lane], show much more skepticism of congressional power, particularly on voting rights. Because Roberts viewed the "effects" language in Section 2 as an "intrusive interference" that is a "drastic alteration" of American government and "constitutionally suspect," why would he look charitably on a renewed Section 5?

In an interesting post, Patterico points to language from a Roberts memo endorsing the effects test for section 5 which Patterico claims "contradicts the premise of" my oped by showing Roberts' views that "an 'effects test' made sense for Section 5 but not for Section 2." (Patterico also suggested that I somehow hid this memo which he says contradicts my premise.)

I wish that Patterico's views were correct but I don't believe that they are. On August 2 (the day before my oped appeared), I put up this post with all the documents I relied upon in writing my oped (linking to the documents again on August 3). The language Patterico cites to is all over the documents I posted (see, for example, pdf page 8, of these documents I posted on August 2). These were part of the Attorney General's talking points for why the Reagan Administration opposed the new section 2.

Before explaining why I don't think the language cited by Patterico indicates that a Justice Roberts would vote to uphold a renewed section 5, it is worth pointing out that the argument made by Roberts (we already have an effects test in covered jurisdictions) is misleading at best. Consider again the example of Mobile, Alabama that I gave at the beginning of my oped:

At the beginning of the 1980s, African American voters made up about one-third of the electorate of Mobile, Ala. Studies showed clearly that these black voters preferred different candidates than white voters, but the nature of the electoral system in the city — in which candidates for city commissioner were elected by majority vote throughout the entire city — meant that the candidates backed by blacks were never elected. The two-thirds of the electorate that was white always outvoted the one-third that was black.

African American civil rights organizations sued, claiming that the at-large voting system unconstitutionally "diluted" their votes. But the U.S. Supreme Court disagreed, holding that Mobile's election system did not violate the 14th or 15th Amendments because there was no evidence it had been designed with the intent of discriminating against minority voters.

Mobile, Alabama was a covered jurisdiction under section 5 of the VRA. So why didn't the "effects" test of section 5 require Mobile to change its at-large system? The reason is that section 5's effects test was the very narrow "non-retrogresson" principle, which was meant to prevent backsliding by jurisdictions with a history of discrimination. Covered jurisdictions that wanted to make voting changes needed to get preclearance from the Department of Justice proving that there was no retrogressive purpose or effect. Thus, section 5 only said you could not make the position of protected minority groups worse off.

Because Mobile simply stuck with its old at-large voting system, section 5 did not come into play. Indeed, if Mobile moved from the at-large voting system to create three white-majority districts, it would not have violated section 5 because the change would not have made members of protected minority groups worse off. Under both the old and hypothetical new system, African-American preferred candidates would have no chance of being elected. It took section 2, with its more expansive test for vote dilution, to get Mobile to change its at-large electoral system in the face of racially polarized voting.

Beyond this debating point put forward by Judge Roberts, what does the language tell us about whether he would vote to uphold a renewed section 5? Not what Patterico thinks In South Carolina v. Katzenbach (1966), the Supreme Court by an 8-1 vote upheld the preclearance provisions of section 5, despite the federalism costs, because of the long history of discrimination in covered jurisdictions and because these jurisdictions played all kinds of games to keep their intentionally discriminatory voting systems in place.

But Katzenbach predates the federalism revolution of the Rehnquist Court. As I explained on August 4 in response to a post by Ed Whelan, who pointed to the very same documents that Patterico now points to:

The problem is that Judge Roberts wrote those words in 1982, when there was still ample evidence that jurisdictions covered under section 5 were engaged in intentional race discrimination in voting, and before the "New Federalism" revolution on the Rehnquist Court, making it much harder for Congress to impose requirements (like preclearance) on the states. In part, the problem is that the Voting Rights Act has been so effective that it is hard to find evidence of intentional state discrimination on the basis of race in voting, even if it would reemerge if section 5 were allowed to sunset. I term this the "Bull Connor is Dead" problem in my forthcoming article, Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee v. Lane, 66 Ohio State Law Journal ___ (forthcoming 2005). An updated and revised version of the article will appear in the book, The Future of the Voting Rights Act, edited by Epstein, O'Halloran, Pildes and de la Garza.

In short, then, the answer to Patterico is this: the 1982 Roberts memos show a person who is skeptical of broad federal power in the area of voting rights. The new federalism cases of the Rehnquist Court provide someone with such skepticism a jurisprudential ground to strike down the renewed preclearance provisions as an "intrusive interference" on the rights of covered jurisdictions. He could well write that what was appropriate for 1965 is no longer appropriate for 2005.
One final point. When I write that Judge Roberts opposed a more expansive view of voting rights, that does not mean I think he opposes all voting rights (as some have mischaracterized me as saying). I think he takes a very narrow view of appropriate Congressional intervention to protect minority voting rights. Consider Roberts' defense of at-large voting in documents released last week.

Probably like Judge Roberts, and unlike many in my field, I believe that City of Mobile v. Bolden was correctly decided. That is, the Supreme Court was right not to strike down at-large districts, even in the face of racially polarized voting, as a constitutional violation. To rule otherwise would have enshrined a proportional-like election system in the constitution that could not be changed. But what is inappropriate as a matter of constitutional law is perfectly appropriate as a matter of Congressional statutory lawmaking. Unlike (what I believe to be the position of) Judge Roberts, I believe that the Supreme Court should defer to a congressional determination (if one is made) that preclearance continues to be required to combat intentional discrimination in voting. (For an extended version of this last argument, see chapter 3 of my book.)

"Commentary: There's good reason for paranoia about Voting Rights Act"

Earl Ofari Hutchinson writes this oped.

"GOP accuses newspaper of boosting Casey with ad blitz"

The Philadelphia Inquirer offers this report, with the subhead: "The Democrat's name appears in headlines on mock front pages of the Scranton Times-Tribune on buses and billboards." Thanks to Adam Bonin for the pointer.

"Georgia Map Gets Closer"

Roll Call offers this report (paid subscription required), which begins: "The office of Georgia Attorney General Thurbert Baker (D) is moving closer to submitting the state’s new Congressional boundaries to the Justice Department for review, the final hurdle for the GOP-led mid-decade redistricting effort. Because Georgia falls under the Voting Rights Act, any changes made to representative lines must be preapproved by Justice before going into effect. "

Prop. 77 News and Commentary

Howard Bashman has a nice collection of links here to stories on Friday's California Supreme Court decision to restore Prop. 77, the redistricting initiative, to the ballot. Randy Riddle has some interesting observations (scroll down to "Proposition 77 Notes") on the intermediate appellate court Justice who voted with three California Supreme Court Justices to grant review. This morning the SF Chronicle reports "A deal unlikely on ballot measures; Partisanship driving legislative agenda." Meanwhile, George Skelton writes that "Sacramento is stiffing the counties by not providing money for Gov. Arnold Schwarzenegger's special state election. It's even stiffing California's chief elections officer, Secretary of State Bruce McPherson."

More Post-BCRA Rulemaking on the Way

The FEC is engaged in new rulemaking (post Shavs v. FEC) concerning various aspects of the "electioneering communications" rules. Bob Bauer links to the general counsel's draft and offers some commentary on the draft.

Breaking News: California Supreme Court, in Split Decision, Puts Prop. 77 Back on Ballot

Here is the Court's order, from the docket:

Petition for review GRANTED. The judgment of the Superior Court of Sacramento County filed on July 22, 2005, in Lockyer v. McPherson et al. (05CS00998), directing the Secretary of State not to place any version of Proposition 77 on the November 8, 2005, special election ballot or in the voter election materials, is stayed pending this court's determination of this matter or further order of this court. In the absence of a showing that the discrepancies between (1) the version of the initiative measure that was submitted to the Attorney General and (2) the version of the initiative measure that was circulated for signature (and that was signed by the requisite number of qualified voters and has been certified for placement on the ballot) were likely to have misled the persons who signed the initiative petition, we conclude that it would not be appropriate to deny the electorate the opportunity to vote on Proposition 77 at the special election to be held on November 8, 2005, on the basis of such discrepancies. (Cf. Assembly v. Deukmejian (1982) 30 Cal.3d 638, 652-654.) Accordingly, the Secretary of State and other public officials are directed to proceed with all the required steps to place in the election pamphlet and on the ballot of the special election to be held on November 8, 2005, the version of Proposition 77 that was signed by the requisite number of qualified voters.
Any public official or other person who has not had an opportunity to revise statements or ballot arguments that have already been submitted to the Secretary of State in order to reflect the version of Proposition 77 that will appear in the election pamphlet and on the ballot shall be permitted to submit a revised statement or ballot argument to the Secretary of State no later than 3 p.m. on Monday, August 15, 2005. After the election, we shall determine ether to retain jurisdiction in this matter and resolve the issues raised in the petition. Kennard, J., and Moreno, J., voted to deny review. Werdegar, J., unavailable and did not participate. Votes: George, C.J., Baxter, Chin, and Aldrich*

* Hon. Richard D. Aldrich, Associate Justice of the Court of Appeal, Second Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

This is a surprise, and a very curious order. On the one hand, the Court seems to resolve the merits, by imposing a "likely to be misled" standard for substantial compliance. On the other hand, the Court seems to leave open the possibility it will revisit the legal question after the election should Prop. 77 pass. (Of course, if it passes, there are a number of substantive challenges to the initiative that I expect to be mounted.)

Reply Brief filed in Prop. 77 Case

I have posted the document here. Page 19 of the petition (page 23 of the pdf) lists the relief requested by the proponents of Prop. 77. They want the Supreme Court to order Prop. 77 to appear on the ballot while the Court considers the merits of the case. (Note also on page 8 the reference to the printer's "flexibility" regarding the printing of the ballots---contrary to the representations made by the printer and the Secretary of State to the Court.)

It appears that it would be unprecedented to place the ballot measure in the pamphlet while the measure's legality continued to be litigated. See Tony Quinn's analysis posted as an update to my query from yesterday.

"Embattled home lender gives heavily to politicians; Ameriquest, a big donor to both parties, accused of duping low-income borrowers"

The SF Chronicle offers this report. Some earlier coverage of mine related to Ameriquest's donations is here and here.

Gov. Schwarzenegger Files Short Letter in Prop. 77 Case

You can find it here.

"VERMONT’S DISABLED VOTERS TO BE AMONG THE FIRST TO VOTE BY PHONE"

The Vermont Secretary of State's office has issued this press release. Thanks to Alec Ewald for the pointer.

Should California Elected Officials Be Able to Take Other Work?

The Sacramento Bee offers Ban Eyed on Outside Income, with the subhead: "Senator's plan would have included governor's pay as editor of muscle magazines." In somewhat related news, the LA Times offers Tabloid's Deal With Woman Shielded Schwarzenegger, which begins: "Days after Arnold Schwarzenegger jumped into the race for governor and girded for questions about his past, a tabloid publisher wooing him for a business deal promised to pay a woman $20,000 to sign a confidentiality agreement about an alleged affair with the candidate."

"FEC Faults Accounting at DeLay's PAC"

The Washington Post offers this report, which begins: "The Federal Election Commission criticized a political fund chaired by House Majority Leader Tom DeLay (R-Tex.) for misstating accounts and failing to report debts worth hundreds of thousands of dollars."

Meanwhile, Bob Bauer reports on the closing of the investigation of Michael Moore's activities in connection with the film "Fahrenheit 9/11." Definitely worth reading for anyone interested in the media exemption.

"Lavish RNC funding of accused conspirator's defense is criticized"

The New Hampshire Union-Leader offers this report, which begins: "A New Hampshire member of the Republican National Committee was 'uncomfortable' to learn that the RNC has used its donors' contributions to pay more than $700,000 in legal bills for accused 2002 GOP phone-jamming conspirator James Tobin."

USA Today Discovers Voting Rights Memos Out for a Few Weeks

The newly released memos from Judge Roberts cited in this USA Today story on Judge Roberts views on voting rights while in the Reagan Administration are in fact duplicates of documents that have already been circulating. See for example this document released by the archives on August 1.

See also this Chicago Tribune story, which includes the following discussion regarding the confirmation process for Judge Roberts:

We do not intend to demonize this man, we're not going to call him names," said Alfreda Robinson, head of the judicial nominations committee of the National Bar Association, an 80-year-old black lawyers organization.

"But we have a view that there are some questions that he needs to answer," said Robinson, associate dean at George Washington University Law School. "For example, his view on reauthorization of the Voting Rights Act, the scope of that act and whether it should be expanded, because ... that's one of the very important issues to civil rights organizations."

Answers to the Petition for Review in the Prop. 77 Case

You can find the AG's answer here. I have received the RPI's answer as well, but the file is too large for me to post on the blog. When I make alternative arrangements for posting it, I'll add it to this post. UPDATE: Here is the RPI's Answer.

How Quickly Must the California Supreme Court Act in the Prop. 77 Matter?

The California Secretary of State has filed this letter (via California Election Law) which explains that if the California Supreme Court decides it wants to keep Prop. 77 on display for the entire 20 day public inspection period, the current stay of the trial court's order, due to expire midnight Sunday, must be extended 17 hours.

The letter goes on to say that immediately after the public inspection period, the Secretary of State must deliver the final version of the ballot materials to the printer. "Due to the strict printing and logistical constraints, the printing of the Voter Information Guide must proceed no later than this date and time. Accordingly, it is imperative that this Court rule on this matter by 5:00 p.m., August 15, 2005."

I am wondering how imperative it really is. Suppose the Court waited and the materials appeared in the ballot materials. If the Court ultimately affirms the lower court, could not the Court simply order that the Secretary not count any votes cast for or against Prop. 77?

I had thought this is what happened in regards to the proposition at issue in Senate v. Jones back in 1999 (removing a redistricting initiative during pre-election review for violating the single subject rule), but that is not so. That case ended with an order "directing respondents to refrain from taking any steps to place Proposition 24 on the March 7, 2000, election ballot or to include the measure in the ballot pamphlet."

Does anyone know of a situation where the California Supreme Court ordered votes not counted following pre-election review, after material had been printed in the ballot materials?
UPDATE: Tony Quinn sends along the following helpful information via e-mail:

I have results for all the statewide elections in California since 1920, and took a quick look at more recent years. I believe there were three instances of measures being qualified and then removed, but in no case were votes cast and not counted. In 1983, the Supreme Court removed the Sebastiani redistricting plan because it was a statutory intiative and the court ruled a "once a decade" constitutional redistricting rule made the Sebastiani plan unconstitutional. Interestingtly, Gov. Deukmejian had already called a statewide special election for that measure. With the measure being removed from the ballot, the election was cancelled.

Proposition 182 was removed "by law" in 1984. Proposition 24, another Costa redistricting initiative, was removed in 2000 for villating the Single Subject rule. Both were before the election

There are several cases of initiatives being declared unconstitiutional immediately after the election and never taking effect, the most famous being Proposition 14 in 1964 (open housing) and Proposition 187 in 1994 (illegal aliens.) An interesting case is Proposition 105 in 1988. This was a potpourri of consumer disclosures and it was ruled unconstitutional in its entirety after the election for violating the Single Subject rule. This Single Subject ruling came after the election, but the Court's ruling taking Prop 24 off the ballot on the same ground, Single Subject violation, before the election suggests a greater willingness to take measures off the ballot for this reason.

"Governor cashing in on Rolling Stones; For $100,000, you can watch concert with Schwarzenegger"

The SF Chronicle offers this report. One wonders if the Stones will perform "Sweet Neo-Con" that night.

"Defoxing the Chicken Coop"

The New York Times offers this editorial, which begins: 'President Bush has a rare opportunity to fight the greed-driven abuses of national politics by naming dedicated professionals to the four open slots on the Federal Election Commission, a supposed watchdog that serves more as a lapdog of party bosses addicted to big-money power brokering. A bipartisan conspiracy of sorts is already being tried by Congressional leaders, who are proposing that President Bush name the same sort of party retainers who reduced commission regulation to a mockery in recent years. But a cleanup movement, led by Senator John McCain, the Arizona Republican, suggests filling the commission with independent members dedicated to defending the interests of voters." Bob Bauer responds.

"The Shrinking Battleground: The 2008 Election and Beyond"

FairVote has issued this report. According to this summary, "The Shrinking Battleground uses a model of 'state partisanship' to explain why the United States has experienced a decrease in the number of competitive battleground states in presidential elections, how these partisan divisions are hardening and what impact they have on American democracy. The fundamental reality is that fewer and fewer Americans play a meaningful role in electing the president – and that the major party campaigns act on that understanding with utter disregard for the interests and views of most voters outside of swing states. The result is a two-tiered system for voters, with damaging impact on voter turnout, racial fairness, political equality and the future of American democracy. The mounting evidence makes it clear that the solution is to establish a direct election of the president so that all votes count equally and the principles of majority rule and one person, one vote are respected. "

More on Judge Roberts and the Voting Rights Act

In today's Los Angeles Times, Abigail Thernstrom writes this oped. Thernstrom's views of Roberts' role in the 1982 VRA amendment process is pretty similar to my own, though she of course has a different view of whether Roberts' should be commended for his effort.

Meanwhile, the National Archives has issued 500 more pages of Roberts papers (see here). Some of these papers relate to the 1982 VRA process (see, for example, here and here). From my early perusal, I did not see much material that is new or different on voting rights than what has already been released. One interesting tidbit is this November 6, 1981 memo early in the VRA process, in which Judge Roberts tells the attorney general that the effects test proposed in the House bill "would make challenges to a broad range of voting practices much easier, and give courts far broader license to interfere with voting practices across the country. In particular, such widely accepted practices as at-large voting would be subject to attack, since it is fairly easy to demonstrate that such practices have the effect of diluting black voting strength. For Congress and the President to invite such judicial remaking of the political system through an effects test is sharply inconsistent with the thrust of your Federal Legal Council speech."

Prop. 77 Proponents Petition for Review in the California Supreme Court

I have posted the petition here. I expect we will hear something from the Supreme Court by the beginning of next week, given that the petitioners have asked for temporary relief that needs to be granted by midnight Monday morning.

In the Election Law Mailbag

I have just received a review copy of Andrew Rehfled, The Concept of Constituency: Political Representation, Democratic Legitimacy, and Institutional Design (Cambridge, forthcoming October 2005). The book description:

Every ten years United States congressional districts are drawn, physically constructing political representation based on where citizens live. Why is it done this way? Is territorial representation consistent with the broader normative ends of political representation for any large nation? And if not, how might random assignment provide a justifiable alternative to group representation? Using the case of the founding period of the United States and classic sources in western political theory to illustrate the argument, this book describes the conceptual, historical and normative features of the electoral constituency. Based on uncontroversial features of political legitimacy (like the idea that a representative should be accountable to those who elected him) it argues in favor of single member, electoral constituencies, each of which look like the nation they collectively represent. It argues that randomly assigning voters into permanent, national electoral constituencies would be worth considering in any large democratic nation.


• A novel thought experiment: assign all citizens into 435 random, national and permanent electoral constituencies for US Congress


• All politics is not local, it only appears that way because we elect our representatives based on where we live


• The standard of ‘one person one vote’ is overrated and leads us to endorse electoral systems that are contrary to broader aims of political representation

I met Andrew last winter and look forward very much to reading this book.

I also just received a reprint of Abner Greene's, Is There a First Amendment Defense for Bush v. Gore?, 80 Notre Dame Law Review 1643 (2005). I read this piece in draft and highly recommend it for those interested in the jurisprudence of Bush v. Gore (not that I agree with Abner's reading of the case).

Also, the Southern California Law Review symposium, "Symposium on the Impact of Direct Democracy," Volume 78, Number 4 (May 2005), is now available on Lexis and Westlaw.

"High-tech voting accessory: Paper"

USA Today offers this report, with the subhead, "More states requiring printouts as backup."

"Reauthorize '65 Voting Act for Our Future"

Jamal Watson offers this oped in the NY Sun. And my link to an oped in the Seattle Post Intelligencer by Helen Thomas yesterday was incorrect. The correct link is here.

"Ohio Critics of G.O.P. Start Battle to Change Election Process"

The NY Times offers this report.

"Few Firms Shape Most Initiatives in California"

The Los Angeles Daily Journal offers this report (paid subscription required). It begins: "California's initiative process conjures noble images of grassroots, power-to-the-people direct democracy. In reality, a small number of high-priced professionals, including members of four prominent legal firms, determine what voters ultimately see on a ballot."

Prop 77 News Coverage

The LA Times offers Justices Bar Redistricting Effort, with the subhead: "Appeals court blocks initiative from the November ballot, saying discrepancies in versions of the measure were a violation of election law." See also stories in the San Diego Union-Tribune; the Sacramento Bee; and the San Francisco Chronicle. See also commentaries by Dan Walters, Fred Woocher, and Bob Bauer.

An Initial Thought on the Prop. 77 Decision

It will be minutes (if it has not happened already) before someone in the blogosphere or in the media comments that the judges who decided this case broke down on partisan lines. The two judges appointed by Democrats voted to keep the redistricting measure off the ballot, and the one judge appointed by a Republican dissented. It will be easy to say that each made a decision expected to beneift his or her political party.

I think that is overly simplistic. The justices differed on both the scope of pre-election review and application of the substantial compliance doctrine. It is of course possible that this is motivated consciously by partisan considerations. I think the better explanation is that subconscious loyalties played a role, much like we saw the near perfect breakdown on partisan lines of opinion during the Florida 2000 mess. (Cass Sunstein has written a bit about the psychology of all this in his piece in "The Vote" book.)

Perhaps this phenomenon is inevitable in cases with high partisan stakes. In the end, I think the trial court judge hearing the Prop. 77 case got it right when she wrote:

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."

This case resulted from the initiative circulators' own negligence. It is that negligence that put the courts in this uncomfortable position.
What's next? I believe the California Supreme Court is likely to refuse to reverse the Court of Appeal, but it is not out of the question.

Breaking News: Appellate Court Votes 2-1 to Keep Prop. 77 off the Ballot

The opinion is here. Expect an appeal to the California Supreme Court. UPDATE: See my initial analysis here.

"Next Steps on Election Reform"

The League of Women Voters has issued this report. The related press release is here.

No Opinion Yet in Prop. 77 Case

I believe that Justice Scotland had indicated that the justices were hoping for their opinion in the Prop. 77 case to issue by Tuesday morning. It is now noon California time, and there is no opinion yet.

"Uncertainty Surrounds November's Special Vote"

The San Diego Union Tribune offers this report. In related commentary, Dan Weintraub writes: "Will Prop. 77 survive? Davis appointee is the key." I expect the Prop. 77 ruling today and will link to it when it is issued.

"The dilemma of Voting Rights Act"

The Virginia Pilot offers this editorial. The Clarion-Ledger (Mississippi) editorializes: "Voting Rights: Landmark Act Should Not Be Diluted." Jesse Jackson writes "Voting Act's Promise Unfulfilled" in the Chicago Sun-Times. Joseph Darby writes "Voting Rights Still Can't Be Taken for Granted" in The State (South Carolina). The Argus Leader (South Dakota) editorializes "Elections Affect Us All; It's not healthy when any group of people is not represented at the polls." The Seattle Post Intelligencer editorializes "Adapt Voting Rights Law to New Realities."

"Suit claims finance law for judges is not legal"

A.P. offers this report from North Carolina, with the subhead, "Anti-abortion group, judge contend law restricts free speech."

"Forrester seeks ruling on financing"

The Philadelphia Inquirer offers this report, with the subhead: "He asked a state agency to confirm his ability to pay for his own campaign. His role in an insurance firm is at issue."

"Public Choice Principles of Redistricting"

John Matsusaka and Thomas Gilligan have posted this working paper on SSRN. Here is the abstract:

This paper uses fundamental principles of public choice, mainly the median voter theorem, to develop a simple theory of redistricting. The focus is on how closely policy outcomes correspond to majority rule. The main results are: (1) Potential policy bias in favor of nonmajority groups is structurally linked to the number of legislative seats and the population, and the structure of most states puts them very close to the theoretically maximum bias. (2) Random districting, which might seem like the essence of neutrality, does not eliminate policy bias on average. (3) Traditional principles of compact, contiguous districts that respect existing political boundaries, stressed in the Supreme Court's Shaw v. Reno decision, minimize the chance of nonmajoritarian outcomes.

A Religious Objection to Campaign Finance Laws?

See this report in the Toledo Blade, which begins:

Ohio First, Inc., the nonprofit organization quietly created last month to fight proposed constitutional reforms of Ohio's election system, was incorporated in the state of Delaware....

Ohio First opted not to file its incorporation papers with Ohio Secretary of State Ken Blackwell's office and instead incorporated on July 6 as a religious nonprofit entity with the Delaware Department of State.

More VRA coverage

Here are additional stories on reauthorization of the Voting Rights Act, following the Act's 40th anniversary:
Boston Globe

Washington Post

New York Times.

More Roberts on Voting Rights

The LA Times covers the story here. See also Morgan Kousser's letter to the editor in response to my recent oped.

Sager on McCain and Reform Institute Funding

See Ryan Sager's column.

Prop. 77 Hearing

I was unable to hear the audio of the oral argument, but I received the following report from a source involved in the litigation (I am happy to post reports from others that attended as well---just send them along):

Close call. Justice Blease seemed most bothered by petitioners' arguments, particularly that the differences in text were not substantial. The Justice went through the various Elections Code provisions that petitioners failed to comply with and had petitioner's counsel concede his clients had not complied. On petitioner's rebuttal Justice Blease expressed the view, reading fromCTA v. Collins, that substantial compliance would not save a petition that was carelessly or negligently prepared. He expressed the view that the petitioners were negligent.

Justice Scotland was very concerned about the recent Supreme Court decision reversing his opinion that Prop 80 violated the state constitution and therefore should not be placed on the ballot. He asked each counsel their views on the case and its application to Prop 77. He was particularly tough on the AG regarding this, suggesting several times that the court could sort this out after the election. Justice Scotland also took on the AG with respect to his position that substantial compliance never applies in situations such as those presented by Prop 77. He used the example of a one word difference between the official version and the circulated version. The AG took a very hard line on this.

Justice Butz asked only three questions, two of which were directed to the Secretary of State's counsel who spoke for only five minutes. She was difficult to read from her questions of counsel.

The court indicated it would rule on Tuesday morning and was aware of the urgency of the matter.

UPDATE Dan Weintraub has this report on oral argument.

"Suit targets effort by group seeking election reform"

See this news from Ohio.

"Clinton rips Georgia's voter ID bill"

Cox News Service offers this report. A snippet: "'All over America there are efforts to restrict access to the vote under the guise of preventing voter fraud. And I say guise — look at this Georgia bill, all the ID you've got to produce to register to vote,' [former President] Clinton said at the opening session of the National Association of Black Journalists convention at the downtown Hyatt Regency hotel."

Retrospectives on the Voting Rights Act

Sunday marks the 40th anniversary of the passage of the Voting Rights Act. Many news outlets are doing retrospectives. Here is a sampling: NPR; San Francisco Chronicle; and the Atlanta Journal-Constitution. UPDATE: I'll be adding retrospectives here:
USA Today

Prop. 77 Hearing to Begin Momentarily Before Court of Appeal

NPR's Morning Edition offers this preview. If anyone is aware of an audio feed of the oral argument (several news organizations requested permission for the feed), please pass it on.

"Judge refuses to dismiss lawsuit against Vilsack"

The Des Moines Register offers this report, which begins: "A judge on Wednesday rejected a request to dismiss a lawsuit challenging Gov. Tom Vilsack’s order to restore voting rights to convicted felons who have finished their sentences."

Whelan on Judge Roberts and the Future of Section 5 of the Voting Rights Act

Ed Whelan (who may not remember that his office was next to mine when he was an associate and I was a summer associate many years ago at Munger, Tolles and Olson) writes in response to my oped that there is good reason to believe that Judge Roberts would be more hospitable to a renewed section 5 of the Voting Rights Act than he was to the proposed section 2: "The answer, as it happens, is provided in the very documents that Hasen has been reviewing. As Roberts explained in 1982, section 2 and section 5 'are addressed to different problems. It makes sense to have an effects test [in section 5] for election law changes in certain areas which suffer from a history of election law discrimination. Section 2 is not so limited.'"
The problem is that Judge Roberts wrote those words in 1982, when there was still ample evidence that jurisdictions covered under section 5 were engaged in intentional race discrimination in voting, and before the "New Federalism" revolution on the Rehnquist Court, making it much harder for Congress to impose requirements (like preclearance) on the states. In part, the problem is that the Voting Rights Act has been so effective that it is hard to find evidence of intentional state discrimination on the basis of race in voting, even if it would reemerge if section 5 were allowed to sunset. I term this the "Bull Connor is Dead" problem in my forthcoming article,
Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee v. Lane, 66 Ohio State Law Journal ___ (forthcoming 2005). An updated and revised version of the article will appear in the book, The Future of the Voting Rights Act, edited by Epstein, O'Halloran, Pildes and de la Garza.

New York Times Publishes Major Article on Judge Roberts' 1982 VRA Papers

The article is here. It draws on many of the same sources I used in my Los Angeles Times oped yesterday.

Tokaji on AVCR Report

Don't miss this post about a controversial new report on election administration problems.

"Daniel Weintraub: Special election campaign off to a pricey start"

See this Sacramento Bee column.

The "Lonely Centrist" on My Oped on Judge Roberts

The "Lonely Centrist" is an anonymously run blog written since July by someone who obviously knows a great deal about election law. He describes himself as "a midwesterner who has lived in the South, the Southwest, and Northeast, in areas rural, suburban, and urban."

Lonely? Perhaps. Centrist? Not so much. In this post he asks "Why is it that when I talk with my conservative friends I feel so liberal, and when I talk with my liberal friends I feel so conservative?" But when you read his critique of my oped on Judge Roberts, he seems more in line with Justice Thomas than with any definition of the center that I know.

First Circuit En Banc Rejects Puerto Rico Right to Vote for President

The A.P. report is here. The opinion is here. There were 2 dissenters.

"Posting Error Dooms Challenge to Mayor's Bid To Appear on Independence Line"

The NY Sun offers this report (paid subscription required).

"Voting Rights Act, at 40, Faces Reauthorization Amid Topsy-Turvy Politics"

Newhouse News Service offers this very interesting report. See also this report from KRT.

"FEC: Follow the Law"

The Washington Post offers this editorial.

"Roberts' Iffy Support for Voting Rights"

The Los Angeles Times has published my oped on Judge Roberts' views of voting rights, based upon my examination of his papers while serving as special counsel to Reagan administration Attorney General William French Smith. These papers relate to the Administration's opposition to amending Section 2 of the Voting Rights Act to make it easier for minorities to prove vote dilution. You can find the original source documents I relied upon in writing the oped here. Here is a snippet from the oped:

In these documents, Roberts wrote that the new Section 2 would "establish a quota system" and "provide a basis for the most intrusive interference imaginable by federal courts into state and local processes." He added that it "would be difficult to conceive of a more drastic alteration of local government affairs."

Imposing the new Section 2 nationwide, he concluded, would be "not only constitutionally suspect, but also contrary to the most fundamental [tenets] of the legislative process on which the laws of this country are based."

One could perhaps argue that Roberts' writings did not reflect his personal views and were simply the arguments of a zealous advocate for a client. But the papers I have seen suggest otherwise.

During the Senate debates, for instance, Roberts wrote that the attorney general had to "get something out somewhere soon" [original emphasis] explaining the administration's position because the "frequent writings in this area by our adversaries have gone unanswered for too long." He called on the administration to take an "aggressive stance" against the changes to Section 2. When it was over and Section 2 had been amended, Roberts wrote that "we were burned."

None of these statements absolutely proves that Roberts is hostile to expansive voting rights legislation, but as he wrote in his talking points for the attorney general, circumstantial evidence (rather than a "smoking gun") should be enough to prove intent.

The oped also talks about what a Justice Roberts might mean for the Supreme Court's consideration of the constitutionality of a renewed section 5 of the Voting Rights Act should that issue reach the Supreme Court in the future.
One of the documents I did not have space to discuss in the oped was one released yesterday by the National Archives. In this memorandum to Ken Starr (see page 2 of the pdf), Roberts recommended that the DOJ intervene in a voting rights case in Chicago, writing: "it is critical that the Department participate in the developing process of giving meaning to the vague terms of the new section 2, and help courts avoid the outcomes we argued against and which the proponents of an amended section 2 assured us were never intended."

"Mike a party animal"

The NY Daily News offers this report, which begins: "Mayor Bloomberg has called himself a Democrat, a Republican, an Independent - and now he wants to be a Liberal, too. Bloomberg, who switched his party affiliation from Democrat to Republican in 2001 to run for mayor, is hoping to revive the state's Liberal Party so that he can run on its currently defunct ballot line in November. That would allow Bloomberg to run as a Republican-Liberal - a fusion that the city's overwhelmingly Democratic majority might find a little easier to support in voting booths this November." Thanks to Political Wire for the pointer.

"Tough times for campaign fund-raisers; New donation limits and special election lighten war chests"

The SF Chronicle offers this report.

Anonymous Campaign Ads in Eureka, CA

See this article in the Times-Standard.

"America Coming Together Comes Apart"

Byron York offers this column at National Review Online.

Judge Roberts' Papers in Connection with the 1982 Voting Rights Act Renewal

The Bush Administration has allowed the National Archives to release papers from Judge Roberts' work in the Reagan Administration in connection with Judge Roberts' nomination to the Supreme Court. I have been examining the papers relating to the 1982 Voting Rights Act renewal. I have posted a set of papers that I obtained from the Alliance for Justice here. There is also a reference to the 1982 amendments in this 1983 document on fair housing posted by the Washington Post. In addition, the Archives just released 59 additional documents, three of which relate to the 1982 renewal. You can find these documents here, here, and here. I rely upon a number of these documents in my Los Angeles Times oped, which should be linked on this page some time Wednesday morning.

"Gonzales: US to work on renewing Voting Rights Act"

Reuters offers this report. A snippet: "[Attorney General Alberto] Gonzales would not give any details on whether the administration would support all expiring parts of the legislation or if it planned to suggest any changes."

"Opponents of voter IDs thrive on fear"

Jim Wooten offers this commentary in the Atlanta Journal-Constitution.

"McCain Pushes for FEC Critic"

The Hill offers this report.

CA Legislative Counsel Memo on Cancelling the Election

I have posted it here. Scott Rafferty makes an interesting point here about whether the election begins Sept. 9, when overseas absentee ballots go out. Presumably after that it would be too late to cancel the election.

Lockyer's Old and New Ballot Label/Summary Identical for Prop. 77

Following up on this post, the Secretary of State has prepared new ballot labels and summaries under court order for Prop. 77. The old and new ballot labels are the same, as are the old and new title and summary (the new versions exclude the separately prepared Legislative Analyst's Estimate of Net State and Local Government Fiscal Impact). UPDATE: As Randy Riddle points out, there is a single word difference in the ballot label, changing title from "reapportionment" to "redistricting."

Eighth Circuit Strikes Down Two More Minnesota Judicial Conduct Rules in White Case

Today, sitting en banc, the Eighth Circuit decided Republican Party of Minnesota v. White, on remand from the Supreme Court. In its opinion, the Eighth Circuit struck down the "partisan activities clause" (see page 8 of the opinion) and the "solicitation clause" (see page 9). The dissent by Judge Gibson relied upon the McConnell case and Richard Briffault's very interesting article on White in the recent Penn Law Review symposium in arguing for the upholding of these provisions.
Howard Bashman links to the earlier opinions in the case here.

"Counsel: Governor can kill special vote"

The San Jose Mercury News offers this report, which begins: "SACRAMENTO - A controversial special election set for fall could be canceled by Gov. Arnold Schwarzenegger anytime before the polls open, according to a legal opinion issued Monday. The conclusion, reached in an analysis written by the California legislative counsel, sets the stage for a potentially long summer and autumn of negotiations between the GOP governor and Democratic leaders." If anyone has a link to the report, please send it along.
Meanwhile, fundraising reports have been released and California newspapers have been covering the money race here, here, here, here, here, and here. Links via Rough and Tumble.

Have Election Law Cases Increased Fivefold in the Last Ten Years?

So claims Professor Davison Douglas, according to this A.P. report. I haven't seen this research. My own count showed a doubling between the pre- and post-2000 period.

Redistricting Reform Initiative May Be Coming to Mass.

See this Boston Globe report.

"Guidance on State Voter Registration Databases"

The Brennan Center has issued this press release related to these EAC Guidelines on implementation of HAVA-mandated state voter registration lists. See also this post by Dan Tokaji (which also links to this story on the confirmation of Donetta Davidson to the EAC.

Roll Call Has a Nice Profile of Bob Bauer

See here (paid subscription required).

Lockyer Ordered to Write New Ballot Title and Ballot Label in Prop. 77 Case

See the entry here under the date 7/29/05. This is very interesting. This is a big political issue now. On the one hand, Lockyer was just criticized for allegedly playing politics with the initiative ballot title and summary process. On the other hand, if he produces a title and summary that are virtually identical to the old title and summary, that will play into Prop. 77 proponents' arguments that there are not major differences between the version of the measure submitted to Lockyer and the version submitted to the voters.

Thanks to Jeff at the Southern California Law Blog for the pointer.

Dan Weintraub on Why Gov. Schwarzenegger Should Not Canel the Special Election

See here.

Roll Call Editorial on FEC Commissioner Replacements

Pick Four (paid subscription required) appears in today's issue. A snippet:

But while Congress has been quick to criticize the FEC (and this editorial page has certainly taken its fair share of shots at it as well), leaders of both parties have given short shrift to the one area in which they can have the greatest impact on making the body effective. Right now, four of the six current commissioners are serving on expired terms. And even if, as some in the reform community were wringing their hands about last week, President Bush offered nominations to the six-member panel as the Senate wound down its business before the August recess, in anticipation of making recess appointments to the body, even that move would miss the point. Not surprisingly, the names that have made the rounds in campaign finance circles as potential nominees are closely associated with either their respective parties’ political committees or their interest group allies.

"Parties Strategize on Renewing Voting Rights Act"

Roll Call offers this report (paid subscription required). A snippet:

While Democrats and their allies want to see Section 5 reauthorized, they don’t want to see it reauthorized permanently — and they’re staking out that position preemptively. While making Section 5 permanent may seem attractive, doing so would make it vulnerable to court challenge, said Ted Shaw, president of the NAACP’s legal defense fund.

In order for Section 5 to withstand strict scrutiny by the courts, it must be narrowly tailored to address the harms it is designed to cure. Shaw questioned whether the courts would find a permanent Section 5 — rather than one periodically revisited by Congress — to be narrowly tailored.

“Even though it may be confusing, we oppose permanent extension of the Voting Rights Act because it’s a Trojan Horse,” Shaw said.

Shaw identified Senate Majority Leader Bill Frist (Tenn.) and Sen. George Allen (R-Va.), both of whom are considering White House bids in 2008, as Members who have mentioned that they are interested in permanent extension.

This is a must-read article for those interested in this issue. It is too bad it is behind the paid-subscription wall.

"Lockyer Is Accused of Stacking Deck Against Initiatives"

The Los Angeles Times offers this front-page report, another argument for nonpartisan administration of elections.

"Some fear Voting Rights Act could change as provisions expire"

See this article, originally appearing in the Chicago Tribune.

"Blumner: Gerrymandering and the demise of competitive elections"

Robyn Blumner offers this opinion column.

"City said no to remedies in voting bias case"

The Boston Globe offers this report, which begins: "Municipal officials say federal authorities proposed remedies for election law violations that allegedly discriminated against Hispanic and Asian-American voters, but the city has decided to fight the matter in court."

Interesting Post on Campaign Signs and the First Amendment

See this post at Sneaking Suspicions.

Corrected Election Law Teacher Database Now Posted

You can find it here.

Wice on Thernstrom on VRA

Following up on this post, Jeff Wice has written a letter to the editor responding to Abigail Thernstrom's recent oped on the Voting Rights Act (article available here without a subscription). In his letter, Wice writes:

Re: "Emergency Exit," Abigail Thernstrom, Opinion, July 29, 2005. As counsel to the New York State Assembly speaker and later to the New York City Council Redistricting Committee, I helped guide the 1992 state congressional and the 2003 City Council plan through the Justice Department approval process for Queens, New York, and Bronx counties. The Justice Department, under the first and second Bush administrations, never once interfered with the line-drawing processes. In fact, the Justice Department approved both plans without a question raised.

The Justice Department never "demanded" that New York create "racially gerrymandered" congressional or City Council districts. Both plans were a product of local deliberations. Moreover, Section 5 of the Voting Rights Act remains today an effective enforcement tool for the protection of minority voting rights. Section 5's mandate goes no further than to prevent the retrogression, or weakening, of effective minority voting strength when new plans are required by decennial census data.

Revised Version of My Paper on Election Administration Reform

I'll be presenting the latest version of my forthcoming paper, Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown, 62 Washington and Lee Law Review (2005), at the APSA meetings in September. Here is the new version, which includes the updated data on public attitudes about the fairness of the elections process and data on the number of election challenge cases in the lower courts from 1996-2004. Comments are still welcome as this piece goes through the editing process at the law review.