"One Person, One Filibuster? Judge Alito's Controversial Comment on a Supreme Court Voting Rights Case"

Findlaw has posted my commentary based upon Judge Alito's questioning of the Warren Court reapportionment decisions of the 1960s. A snippet:

In light of all the different criticisms that might be - and have been - made of "one person, one vote," it is hard to know what to make of Judge Alito's 1985 comment. So the Senate ought to ask him a series of follow-up questions to figure that out.

Senators should begin by asking whether Alito still holds that view. Another question (relevant in many contexts besides election law) should be how strong his respect for precedent is: If he does disagree with decisions, how quickly would he vote to overturn them?

Most importantly, Senators should probe whether Alito questions the Court's reasoning, its strict equal population remedy, or both.

Perhaps he agrees that Court intervention was necessary to end the practice of grossly malapportioned districts, but also believes the Court's strict one person, one vote principle went too far in remedying that problem, and that mild deviations from "one person, one vote" might be acceptable.

This view, depending on how Alito expresses it, likely would allay fears of some Senators about whether Alito's views are outside the mainstream on this issue.

But perhaps, as Senator Biden suggests, Judge Alito would prefer to return to the days where state legislatures could restore malapportioned districts--potentially leading to the biggest power grab through redistricting that we likely would see in our lifetimes.

That view is far from the mainstream, and would offer a principled basis for Senators to oppose Judge Alito's confirmation, and perhaps even filibuster his nomination.

"Specter's Letter to Gonzales on Civil Rights Enforcement"

Dan Tokaji has posted this letter from Sen. Alren Specter to Attorney General Alberto Gonzales regarding enforcement of civil rights by the DOJ. Dan offers this commentary on the letter as well.

"Start over on voter law"

The Atlanta Journal-Constitution offers this editorial, which begins: "After a federal judge suspended Georgia's new voter identification law on grounds that it probably violated the voting rights of black citizens, and after the embarrassing release of a Justice Department memo indicating the Legislature had given little thought to the potential impact of the measure, Republican leadership in the state Senate finally seems willing to revisit the law."

"Voting rights"

The Baltimore Sun offers this editorial, which begins: "JACK KEMP, the former housing secretary and onetime Republican vice presidential candidate, raised eyebrows last month when he urged Congressional lawmakers to require states to restore voting privileges to former felons, an issue not traditionally supported by Republicans."

"Enact This Campaign Reform"

The Hartford Courant offers this editorial. See also this news report, "Reform Proposal Heading for Vote."

"Mayor West's future is shaky"

Joshua Spivak has written this Seattle Times oped, which begins: "SPOKANE voters have the chance to join a growing number of cities throughout the country in a newly invigorated tradition — ousting an elected leader by recall."

New Article on Election Administration Reform

The Washington and Lee Law Review has sent me the final version of my article, Richard L. Hasen, "Beyond the Margin of Litigation: Reforming U.S. Election Administration to Avoid Electoral Meltdown," 62 Washington and Lee Law Review 937 (2005). The article should appear in print and on Westlaw and Lexis within a few weeks. In the meantime, you can download a pdf of the article at this link. Here is the abstract:

In the 2004 presidential election, the United States came much closer to electoral meltdown, violence in the streets, and constitutional crisis than most people realize. Less than a 2% swing among Ohio voters toward Democratic candidate for President John Kerry and away from incumbent Republican President George W. Bush would have placed the Ohio - and national - election for president well within the "margin of litigation," and it would have gotten ugly very quickly. Allegations of voter fraud and voter suppression were rampant on both sides, and even though Kerry conceded the election on the day after Election Day, public confidence in the U.S. system of American administration is now quite low. Previously unpublished data demonstrate that there is a growing partisan divide over views of the fairness of the election process.

The bad news from the story of Election 2004 is that things likely won't get better enough in 2008. As Part I details, the extreme partisanship and close division of the American electorate, coupled with the Electoral College system, make the possibility of another razor-close presidential election in one or more battleground states fairly likely. Add to that mix election administration incompetence and a widely decentralized system of election administration with a patchwork of inconsistent rules. What's worse, since Bush v. Gore, losing candidates have become more willing to resort to election law as part of a political strategy: the number of election-law related cases in the lower courts has risen dramatically compared to the period before the case. It all adds up to a recipe for electoral meltdown.

In Part II of this Article, I argue for three reforms that could significantly lower the risk of electoral meltdown. First, I advocate registration reform, in particular universal voter registration conducted by the government coupled with a voter identification program. There has been a wide partisan divide in the election administration debate between Democrats who have expressed concern about voter suppression and Republicans who have expressed concern about voter fraud. The registration reform I advocate can alleviate both of those concerns, minimize the potential for and political rhetoric regarding voter fraud, and eliminate a great majority of potential litigation surrounding presidential election administration

Second, I advocate a transition to nonpartisan election administration. The nonpartisan solution aims to create both the actuality and appearance of neutrality in election administration, thereby bolstering the public's faith in the process. Australia and Canada serve as good models for reform in this regard, though not necessarily their nationalization of election administration. I consider how to assure that U.S. election administrators are truly nonpartisan, and contrast arguments for nonpartisan election administration with calls for nonpartisan redistricting commissions and campaign finance enforcement.

Third, I discuss the role of the courts in minimizing electoral meltdown. The key here is to encourage courts to be more willing to entertain pre-election litigation and much more chary of entertaining post-election litigation. To the extent election administration problems can be recognized in advance, pre-election judicial review prevents future harm from occurring, rather than putting courts in the position of trying to undo the bad effects of a past harm. The costs of post-election review are large: the pressure put on courts to decide arcane election law questions when the outcome of an election - especially a presidential election - is huge, and the appearance of partisan decisionmaking is inevitable.

"A Growing Wariness About Money in Politics"

Jeffrey Birnbaum offers this analysis in the Washington Post. It begins: "For several years now, corporations and other wealthy interests have made ever-larger campaign contributions, gifts and sponsored trips part of the culture of Capitol Hill. But now, with fresh guilty pleas by a lawmaker and a public relations executive, federal prosecutors -- and perhaps average voters -- may be concluding that the commingling of money and politics has gone too far." Bob Bauer comments as does Allison Hayward.

"Voting-machine deadline at risk"

The Sacramento Bee offers this report, with the subhead: "California's secretary of state says he may not certify any more electronic ballot systems this year, throwing compliance with a U.S. disabled-voter law into doubt for many counties." In somewhat related news, the SF Chronicle offers Hacking of Voting Machines Put on Hold, which begins: " A state-sanctioned attempt at hacking one brand of electronic voting machines will not occur Wednesday, Secretary of State Bruce McPherson said Monday at what's billed as the nation's first summit on voting machine testing."

New Voting Rights Suit in Indian Country

The Jackson Hole Star-Tribune offers Legal Clash Shapes Up on Race.

"Daniel Weintraub: Redistricting reform might live to see another day"

See this Sacramento Bee column.

John Lott on Judge Alito and the "One Person, One Vote" Controversy

See this Washington Times oped. A snippet: "Hopefully, Mr. Biden's selective moral outrage will produce some very educational exchanges. After all, did Mr. Biden ever put forward legislation to stop the unfair practice of giving Delaware and other small population states overrepresentation in the Senate? It will be interesting to see how he attacks Judge Alito without facing such obvious hypocrisy." My own views on the controversy should appear at Findlaw tomorrow.

"Closing In On Election Reform; Top Democrats Back Public Financing Plan"

The Hartford Courtant offers this report. See also this AP report. Thanks to Dewey Dow for the links.

"McGahn Staying Put at NRCC"

The Washington Post's blog, "The Fix," offers this post, which begins: "Don McGahn, the lead lawyer for House Republicans' campaign arm, will not be named to fill a GOP vacancy on the Federal Election Commission; instead, he will stay with the National Republican Congressional Committee for the duration of the cycle." Thanks to Ed Feigenbaum for the pointer.

"Hispanic community grows, but its politicians lose; Some wonder why Hispanic candidates don't win races in Osceola County, where one in three voters is Hispanic"

The St. Petersburg Times offers this very interesting report. A snippet:

Nov. 5, 1996, marked a historic night. Osceola County elected its first Hispanic to a local office. It symbolized how Hispanics were reinventing this community in the shadow of Disney's theme parks.

But on the same ballot, voters eliminated the system of single-member districts crucial to Guevara's victory.

After Guevara, Osceola forced candidates to run countywide, where white voters still make up the majority.

And since then, no other Hispanic has won a local election in Osceola County, even though more and more are running. Hispanics account for one in three Osceola voters.

Now, in a rare move for the Bush administration, the U.S. Department of Justice is suing Osceola under the Voting Rights Act, claiming that countywide districts discriminate against Hispanics.

It's one of the first times the Bush administration has used the Voting Rights Act, designed to help black voters, to ensure that Hispanics have the opportunity to elect their preferred candidates.

"Democrats Plan To Vote This Week On Campaign Reform"

A.P. offers this report from Connecticut.

No ruling in Texas Redistricting Cases

Today's Supreme Court order list makes no mention of the Texas redistricting cases, which have been relisted yet again. There are two more conferences scheduled for this year, then a four week break. Could it be that these cases will await the vote of a new Justice? Most likely the cases are being relisted as one of the four Vieth dissenters prepares a dissent from a summary affirmance in this case. The delay makes it less likely that Justice Kennedy sees this case as the vehicle for setting forth a reinvigorated partisan gerrymandering test, as he (along with the four Vieth dissenters) likely would have already voted to set the case for argument.

"A Lack Of Support, Or Just A Lack Of Clarity?"

Eliza Newlin Carney offers this "Rules of the Game" column in National Journal, which begins: "Ask the average voter how the presidential public financing system works, and you're likely to get a blank stare."

"The Federalism Defect in the Prosecution of Tom DeLay"

Ned Foley offers this Roll Call oped (paid subscription required).

"Voter ID bill not an obstacle for minorities"

Bradley Schlozman, principal deputy assistant attorney general for the Justice Department's Civil Rights Division , offers this defense of DOJ's decision to preclear Georgia's voter i.d. law in the Atlanta Journal-Constitution.

"Free Speech Under Siege"

George Will offers this Newsweek column discussing issues related to campaign financing and political gerrymandering.

"Dan Walters: State's case of initiative fever rages on, with no cure in sight"

See this Sacramento Bee column. See also this somewhat related AP report from Ohio.

"Can Diebold machines pass the test?"

The Oakland Tribune offers this report, which begins: "Back in May, voting activists went on the Internet and for $300 apiece purchased two devices used to record moisture levels in corn. Certain corn scanners use the same memory cards as Diebold Election Systems' optical-scanning machines for ballots and can easily modify them. That makes corn scanners into a tool for vote hacking. Sitting by a hotel pool last spring in Florida, Finnish computer expert Harri Hursti wrote his own program onto a memory card so it could alter poll results on a Diebold machine in Leon County and flash a screen message — 'Are we having fun yet?' — that shocked the local elections supervisor."

"Alito's Stance on One Man, One Vote Is Debated"

The Washington Post offers this report.

"Compulsory voting in Australia: Turnout with and without it"

Jonothan Louth and Lisa Hill have posted this paper in the Australian Review of Public Affairs. Here is the abstract:

In this paper we address claims made by those supporting the abolition of compulsory voting about the relationship between turnout levels and compulsory voting. Via a critique of the methodology used, we query estimations of the effectiveness of compulsory voting laws and dispute common assertions about how high Australian turnout would be under a voluntary system. We then show that projected comparisons with places like Malta, New Zealand and The Netherlands are questionable. We also challenge other projections, that are based on data that has been insufficiently disaggregated. We conclude that when compulsory voting is properly administered in a congenial setting (such as Australia), it is the best means for guaranteeing high and socio-demographically equal rates of voting participation. Without it, Australian democracy would be experiencing the same citizenship crises currently being experienced in most other industrialised, voluntary voting settings.

Robbin Stewart on "No Exit?"

Robbin Stewart offers some thoughts on my draft paper on the Roberts Court and election law.

Thanks to Politics1.Com

...for naming the Election Law Blog the "Site of the Day."

"Hacker to try to attack state voting machines"

The SF Chronicle offers this report, which begins: "A computer hacker will be trying to break into one of California's electronic voting machines next week, with the full cooperation of the secretary of state."

"If Election Reform Falters, Bring On The Convention"

Daniel Klau offers this Hartford Courant oped.

Ninth Circuit Decides Interesting Voting Rights Case Apparently Requiring that Recall and Initiative Petitions Be in Multiple Languages, Creating a Circuit Split

In Padilla v. Lever, a Ninth Circuit panel held 2-1 (opinion by Judge Pregerson; dissent by Judge Canby) that circulators of recall petitions in California may be compelled by Section 203 of the Voting Rights Act to provide recall petitions in Spanish. Petitioners alleged that Spanish-speaking voters were misled into signing recall petitions through a misrepresentation about the petition's contents.

The statutory questions in the case are interesting (I see reasonable arguments on both sides), but the consequences of the case are far-reaching and suggest to me that Judge Canby may have the better of the argument. The ruling appears to apply to initiative petitions as well as recall petitions. Judge Canby, in dissent, writes:

The downside of application of [section 203] to initiative and recall petitions is the chilling effect on recalls and initiatives. As the defendants point out, if the Voting Rights Act were to be applied to recall petitions for an office of Orange County, California, petitions would have to be presented in English, Spanish, Vietnamese, Korean and Chinese. It is not at all clear who is to bear the expense of such translation and printing; presumably it would be those who seek the recall. Even aside from the expense, the sheer burdensomeness of the effort is likely to chill petition campaigns and make their success extremely unlikely.

"Scalia Claims Gore Responsible for 2000 Controversy"

ACSBlog has this post quoting a New York Post article that I have been unable to access. According to ACSBlog, the article quotes Justice Scalia as follows: "The election was dragged into the courts by the Gore people. We did not go looking for trouble." It further quotes him as saying: "The issue was whether Florida's Supreme Court or the United States Supreme Court [would decide the election.] What did you expect us to do? Turn the case down because it wasn't important enough?"

Assumptions about the Politics of Race Post-Katrina

Spencer Overton writes of the need to address certain assumptions about race, politics, and Katrina, including the following assumption: "Louisiana is a 'swing' state, and because many evacuees from New Orleans were African American, Republicans have incentives to insure that those evacuated permanently settle in other states and do not return to Louisiana." He concludes with the question: "Can we have a real conversation about Katrina, race, and politics that is more than political sound bites?"

"Congressman seeks hearing on voter ID"

The Atlanta Journal-Constitution offers this report, which begins: "Rep. David Scott of Atlanta, backed by Democrats on the House Government Oversight Committee, is calling for a congressional hearing into whether the U.S. Department of Justice improperly approved Georgia's voter ID law." Another snippet: "Democrats last week acknowledged it was unlikely the Republican chairman of the committee would agree to investigate the Republican-run Justice Department." Meanwhile, Cecil Staton writes this oped. A snippet: "As the legislator who originally introduced and shepherded the photo ID legislation through the Senate, I am deeply offended that anyone would suggest or imply that the motivation for this law was racism. What we originally proposed in Senate Bill 84, which was rolled into House Bill 244, was to eliminate as much voter fraud as possible, so that the votes of all Georgians are protected."

"Looks Like a Poll Tax"

Roy Saltman has this letter to the editor of the Washington Post regarding Georgia's voter i.d. law.

"U.S. sues Missouri over voter lists"

The Kansas City Star offers this report, which begins: "The federal government sued the state of Missouri on Tuesday, alleging it does not maintain voter registration lists properly and has failed to purge ineligible voters from the rolls."

"White House Says Alito Was Assuring on Districting"

The New York Times offers this report, which begins: " Moving to defend the Supreme Court nominee Samuel A. Alito Jr. against attacks on his stance on civil rights, the White House said Tuesday that he had assured senators last week of his commitment to the principle of one person one vote. 'Judge Alito believes and has told senators that he believes 'one man one vote' is bedrock principle,' Steve Schmidt, a White House spokesman, said Tuesday."

"Report: Lawmakers operated 527s that gave money to national parties"

The Hill offers this report, which begins: "Rep. Tom DeLay's (R-Texas) public defense to the charge that he and two aides illegally funneled corporate campaign contributions through national party committees to state campaigns has been that everyone does it. A new report may support the thrust of DeLay's argument while acknowledging that not every state prohibits corporations from contributing to state campaigns, as Texas does." In a somewhat related commentary, Brad Smith has written this Wall Street Journal oped. "Why Single Out Tom DeLay?" (paid subscription required, but excerpts here).

"Spitzer Calls for Nonpartisan Districting"

The NY Times offers this report, which begins: "Attorney General Eliot Spitzer said Monday that if elected governor he will end a practice that many say is at the root of Albany's dysfunctional government: the power of state lawmakers to draw legislative districts so that incumbents are perennially re-elected. Mr. Spitzer, a Democrat, called the current system 'a classic conflict of interest' and said that as governor he would push for a nonpartisan commission to draw district lines. If the Legislature did not agree to such a change, he pledged that he would veto the next set of district lines established unless the boundaries were 'reflective of democracy, not incumbent protection.'"

"GOP opposition akin to 'Southern Strategy'"

The Macon Telegraph offers this editorial, which begins: "It's not particularly surprising - actually, it was predictable - that Georgia's Republicans would oppose renewal of the Voting Rights Act even though that opposition doesn't have a snowball's chance in a very hot place of succeeding. Even President Bush and his attorney general, as well as Republican and Democratic congressional leaders, support renewal the act, which is to expire in 2007, for another 25 years. Section 5 of that act, mandating federal oversight and preclearance of voting laws adopted in Southern states, almost certainly will be approved."

"Getting out the vote just got tougher"

Lawrence Norden and Jeremy Creelan of the Brennan Center have written this NY Daily News oped, which begins: "New York is about to purchase new voting machines. Unfortunately, the New York State Board of Elections has taken the position that the state may only choose from among the most expensive, error-prone and inaccessible machines available."

Are Coin Tosses a Bad Way to Decide Close Elections?

I have always been in favor of them when both sides agree or the law already provides, out of the belief that that it is cheaper to do so when the margin of error exceeds the margin of victory. But one New York town disagrees.

Ryan Sager on Fired Up! AO

See this Tech Central Station column.

"FEC Extends Press Exemption to Blogs"

Roll Call offers this report (paid subscription required). My earlier coverage is here.

"Voting Cases Could Shape Debate Over Alito"

The Wall Street Journal offers this report, with the subhead: "Court Nominee's Views on Reapportionment Decisions Puzzle Scholars, Anger His Critics." I had predicted last Monday that this issue would become important once the 1985 document was released expressing the judge's view on the Warren Court reapportionment cases. And now AP reports: "The views that Samuel Alito expressed on reapportionment in a 20-year-old document could jeopardize his Supreme Court nomination and provoke a filibuster, a leading Democratic senator said Sunday.
'I think he's got a lot of explaining to do, and depending on how he does, I think will determine whether or not he has a problem or not,' said Sen. Joseph Biden, a member of the Senate Judiciary Committee, which plans confirmation hearings in early January."

NYT Editorial on the FEC and Recess Appointments

See here.

"Georgia GOP challenging Voting Rights Act renewal, likely in vain"

A.P. offers this report.

"In Canada, regular folks are put to work on reforms"

Steven Hill offers this oped in the San Jose Mercury News.

"No Exit? The Roberts Court and the Future of Election Law"

I have posted this draft article on SSRN. This is still a work in progress, and comments are welcome. Here is the abstract:

This article, prepared for a symposium on voting rights in the South Carolina Law Review, examines the future of election law in the Roberts Court. Even before the death of Chief Justice William H. Rehnquist and the announced retirement of Associate Justice Sandra Day O'Connor, election law scholars had declared that the Supreme Court had reached "doctrinal interregnum." In the campaign finance arena, the Court's jurisprudence was becoming increasingly incoherent; voting rights law was said to be "at law with itself;" partisan gerrymandering claims in flux; and the question of Supreme Court oversight of the "nuts-and-bolts" of elections after Bush v. Gore a big mystery.

With the change of two Justices on the Supreme Court, exit from doctrinal incoherence and uncertainty becomes possible. The replacement of Chief Justice Rehnquist with new Chief Justice John Roberts and the replacement of Justice O'Connor with a new Justice appointed by President Bush could provide an opening for major changes in Supreme Court election law doctrine. This is especially true with Justice O'Connor's departure, because she has held the swing vote in key election law cases.

What sort of changes should we expect from the Roberts Court? Making predictions is exceedingly difficult when the swing votes likely will be held by those who have not expressed (or not expressed recently) views on these subjects, and concern for respecting (even wrong-headed) precedent could prove a strong force. And Justices' views certainly may change over time. Still, I work under the assumption that a conservative president who had apparently committed himself to appointing Justices in the mold of Justices Thomas and Scalia is unlikely to appoint Justices who in fact move the Court to the left, and could well move the Court to the right in key election law cases.

The result is that 5-10 years from now, the ground rules for American political competition could undergo a major change. Within the next decade, we could well see deregulation of campaign financing, a limiting of Congressional power to impose national solutions to problems of minority voting rights, and an upholding of state power to redistrict for partisan gain and impose increasingly draconian election administration tools enacted in the name of fraud prevention. The ability of states to manipulate election rules for partisan gain may present the greatest danger, as the Court exits from that corner of the political thicket. For those who look to courts for the promotion of political equality, the signs are not encouraging.

"Voter ID memo stirs tension"

This Atlanta Journal-Constitution report, following up on a Washington Post report that I covered yesterday, begins: "The chief sponsor of Georgia's voter identification law told the Justice Department that if black people in her district 'are not paid to vote, they don't go to the polls,' and that if fewer blacks vote as a result of the new law, it is only because it would end such voting fraud." See also this reaction from Dan Tokaji.
UPDATE: Today's Washington Post features a follow up article, Justice Plays Down Memo Critical of Ga. Voter ID Plan. A snippet:

Justice spokesman Eric Holland said in a statement that the 51-page memo "was an early draft that did not include data and analysis from other voting section career attorneys who recognized the absence of a retrogressive effect." He said the document contained "analytical flaws" and "factual errors."

"The early draft . . . does not represent the quality of factual and legal analysis that the Justice Department expects in a final product," Holland said.

Significant FEC Advisory Opinion Gives Breathing Room for Election-Related Blogging, For Now

Yesterday the FEC approved by a 5-0 vote Advisory Opinion 2005-16 (Fired Up!). This development apparently received no coverage yet in the mainstream media, though you can find good analysis in the blogosphere by Adam Bonin, Bob Bauer, and Allison Hayward. The opinion gives an election-related website (or blog) with a definite partisan position the ability to claim the same exemption from certain campaign finance laws that the mainstream press may claim when reporting or editorializing on election-related issues.

This is an important development, because---at least for the time being---it gives some breathing room to political blogs. One of the concerns I had was a significant chilling of election-related activity in the 2006 elections out of fear that complaints would be filed with the FEC at a time of regulatory uncertainty (the FEC internet rulemaking remains pending). It may be that the FEC rules (which could well be adopted by an FEC comprised of up to four new commissioners) will differ in some respects from the position of the FEC AO in Fired Up!. But in the meantime this looks like good news for political bloggers. Perhaps most significantly, the FEC rejected the arguments of some in the reform community that the partisan nature of the speech should be relevant to the speech exemption. As I have argued, this was neither a workable nor desirable test to separate the press from everyone else.

"Lawmakers Still Spinning Wheels on Campaign Finance Reform"

See this report from Connecticut.

"Texas Republicans Agree to Limit Use of Corporate Funds"

The Washington Post offers this report.

Election Law Journal 4:4 Now Available; Preview of ELJ 5:1

You can find the table of contents for the final issue of volume 4 of the Election Law Journal here. Look for ELJ 5:1 in January, featuring Frederick Baumgartner on papal elections, Mike Alvarez, Betsy Sinclair, and Rick Hasen on the ballot order effect, Michael Malbin on presidential public financing, Jeff Milyo and David Primo on campaign finance laws and political efficacy, a case preview of the Supreme Court's upcoming campaign finance cases (Vermont spending limits and WRtL) by Richard Briffault, and a book review by John Hibbing.

"Alito disagreed with court decisions on reapportionment"

The Boston Globe offers this report.

New Study of State Public Financing Laws

The following announcement arrived via e-mail from the Center for Governmental Studies:

In the last two years, residents witnessed campaign finance scandals in Connecticut and Tennessee along with record-breaking fundraising campaigns in the New Jersey gubernatorial elections, New York City’s mayoral election and California’s ballot measure battles. These events have re-opened the debate about public financing as a good government solution to common campaign finance problems.

To help assess the current state of public financing, the Center for Governmental Studies (CGS) has just released a series of charts outlining the laws of twenty-four states that have public financing on their books as part of their series, Public Financing in American Elections. CGS is a noted authority on public financing laws and has analyzed the effectiveness of numerous programs in multiple jurisdictions including New York City and Los Angeles in a multi-year comparative research project.

These charts describe the key features of various types of public financing programs. There are two main categories of public financing: full public financing (“clean money”), which provides all of the costs necessary to run a campaign, and partial public financing, which only covers some campaign costs. Of the twenty-four states, Arizona and Maine are the only ones that offer full public financing programs for candidates for all state public offices. New Mexico and North Carolina provide full public financing for some public offices and New Jersey recently adopted a full public financing pilot program for two of its legislative districts.

Most states provide public financing in the form of tax incentives to individuals who want to contribute to a particular political party or to qualifying candidates. For instance, the State of Minnesota refunds up to $50 to individuals who contribute to political parties or state office candidates agreeing to spending limits. Arkansas, Ohio, Oregon and Virginia offer tax credits for contributions made to candidates for public office.

States use a variety of mechanisms to fund their public financing programs. Some rely solely on direct appropriations from the general fund while others provide funding through dedicated sources – usually by imposing fines on unpopular citizens or unfavorable activities. Examples of dedicated sources include administrative and civil penalties paid by people who violate campaign finance or ethics laws and surcharges on civil and criminal fines. Most states employ a combination of these mechanisms to fund their programs. The earlier CGS report, Public Financing of Elections: Where to Get the Money, discusses more than 40 possible approaches to funding sources.

The State Public Financing Charts provide the following detailed information about each program:

* How funds are allocated (including maximum amounts allowed)
* Qualifying thresholds
* Residency requirements for matchable contributions
* Funding mechanisms
* Spending limits (as well as spending limits per resident)
* Contribution limits (including candidate personal contribution limits)
* High spending opponent and independent expenditure trigger provisions
* Debate requirement

In addition to the reports mentioned above, CGS published a public financing primer, Investing in Democracy: Creating Public Financing of Elections in Your Community, local public financing charts, and reports on San Francisco, Tucson and Suffolk County (NY). The reports provide a detailed examination of the strengths and weaknesses of public financing laws in practice, with suggestions for improvements, modifications and reform. These reports, as well as the state public financing charts, are available from CGS or can be downloaded from the CGS website, www.cgs.org.

Funding for this report was made possible by a generous grant from Carnegie Corporation of New York. The views in the study do not necessarily reflect the opinion of Carnegie Corporation and it does not take responsibility for any of the statements or views in the report.

For more information about the series or this chart, please contact Steve Levin, Political Reform Project Manager at (310)470-6590, ext. 115.

"High Court May Review Judicial Elections"

The National Law Journal offers this report. In even more chilling news, the Sacramento Bee offers Bid to punish judges has eye on state, which begins: "An initiative providing for the ouster and criminal indictment of judges who make bad decisions appears headed for a test vote in South Dakota next year and, if it succeeds there, will be attempted in other states, sponsors of the measure said this week."

"McPherson to Seek Reelection to State Post"

The LA Times offers this report. And in an election-related editorial, the newspaper offers A Better Direct Democracy.

"New Orleans Vote Near, but Who Will Go?"

The New York Times offers this report.

Internal DOJ Documents on Georgia Voter ID Requirements Leaked to Washington Post; Show Career Attorneys Opposed Preclearance

The Washington Post offers a front page report, Criticism of Voting Law Was Overruled; Justice Dept. Backed Georgia Measure Despite Fears of Discrimination. It begins: "A team of Justice Department lawyers and analysts who reviewed a Georgia voter-identification law recommended rejecting it because it was likely to discriminate against black voters, but they were overruled the next day by higher-ranking officials at Justice, according to department documents." The newspaper has posted the 51-page memorandum in pieces, available at this link.

This is significant not only for the Georgia i.d. question (the analysis in the memo will surely be seized upon by plaintiffs in their current suit pending before the 11th circuit after a federal district court issued a preliminary injunction holding the law an unconstitutional "poll tax"). It also highlights the question, raised by Nate Persily, Dan Tokaji, and others whether it makes sense for Congress, in renewing the preclearance provisions of the Voting Rights Act, to retain DOJ as the approving agent in light of a perceived increasing politicization of the DOJ's preclearance decisions. Dan has a recent post on this topic that predates the current revelations, but builds on an earlier Post story on upheaval in the DOJ.

I expect this issue will also play into the post-Katrina claims by members of the civil rights community that the Bush Administration is insensitive to the interests of African-Americans and other minorities.

The NYT Editorial Page on Judge Alito and One Person, One Vote

In Ignore the Man Behind the Memo, the New York Times editorial page writes: "[Judge Alito] noted his 'disagreement with Warren Court decisions' in many important areas, including reapportionment. The reapportionment cases established the one-person-one-vote doctrine, which requires that Congressional and legislative districts include roughly equal numbers of people. They played a key role in making American democracy truly representative, and are almost uniformly respected by lawyers and scholars."

I think this is somewhat of an overstatement. While I believe there is near consensus that Baker v. Carr was correctly decided, there has been a great deal of criticism of the one person, one vote rule in recent years from both the left and right. I have already written about Judge McConnell's criticisms. But there have also been thoughtul pieces by Sandy Levinson, Grant Hayden, Richard Briffault, myself and others who can't be characterized as conservatives, questioning at least in part the implementation of the Supreme Court's one person, one vote rule.

"Voter Disenfranchisement by Attrition; With friends like FEMA, who needs Jim Crow?"

In These Times offers this very important report, which begins: "When Hurricane Katrina came ashore in New Orleans, it destroyed half the city’s voting precincts and scattered 300,000 of the city’s residents, most of them black, across the country. With citywide elections still scheduled in February and March for 20 key public offices—including mayor, criminal sheriff, civil sheriff and all city council members—restoring the city’s democratic capability might seem an urgent task to some, but not to the Federal Emergency Management Agency (FEMA)."

Court Invalidates Ballot Measure Where Chinese Translation of Measure was Faulty

See here.

"Recounting Ohio: Was Ohio stolen? You might not like the answer"

Mother Jones has published this very interesting book review by Mark Hertsgaard. Thanks to Matt Kohn for the pointer.

Links to More WRtL Amicus Briefs

See here. One of the briefs, on behalf of Senator McConnell, was authored by Ted Olson.

More Commentaries on Lessons from the California and Ohio Election Reform Defeats

See Ned Foley's commentary and Bob Bauer's commentary, which offers a different view of the BC citizens' assembly promoted by Heather Gerken.

Conservative Groups' Amicus Brief in WRtL

Allison Hayward has posted it here. Allison reports that the brief was filed on behalf of the Center for Competitive Politics, the Cato Institute, the Institute for Justice, Reason, the Goldwater Institute, and the Claremont Institute. Who is CCP? "The Center for Competitive Politics is a non-profit organization founded in August 2005 by [former FEC Commissioner and current Capital law professor Brad] Smith and Stephen M. Hoersting, a campaign finance attorney and former General Counsel to the National Republican Senatorial Committee. CCP’s mission, through legal briefs, studies, historical and constitutional analyses, and media communication, is to educate the public on the actual effects of money in politics, and the results of a more free and competitive electoral process. With the exception of participating in the two pending Supreme Court cases relevant to its mission, CCP will open its doors in early 2006."

Some Evidence One Person, One Vote Will Get Some Play in Judge Alito Hearings

See this fact sheet from the Alliance for Justice. A snippet: "Judge Alito should say whether he continues to believe that the Constitution provides no right to abortion, contains no 'one person-one vote' principle, permits religious prayer in school and forbids affirmative action."

Richie on Eilperin and Redistricting

See this post on Fairvote's new blog.

"Initiatives' defeats deal a blow to electoral reform"

The San Jose Mercury News has published my oped, which begins:

The cause of election reform took a serious blow Nov. 8, when voters in California and Ohio soundly rejected measures that would have reined in partisan redistricting and, in the Ohio case, changed the state's system of partisan election administration to a more bipartisan system. These were not perfect measures. But the long-term impact of these failures will be to discourage the use of the initiative process to undertake much-needed election reform.

But the lesson that political operatives will learn from these experience is that it will be hard to pass even good-government types of election reforms -- some of which are urgently needed -- when facing well-funded opposition from political parties with a vested interest in the status quo. Who will throw money to fund the next reform initiative in California after these failures?

Such a reaction is unfortunate. After the Kevin Shelley debacle, Californians should seriously consider making the secretary of state a non-partisan position -- choosing California's chief elections officer through a non-partisan election, or, better yet, through gubernatorial appointment with confirmation by a 75 percent affirmative vote of the Legislature. Such a procedure will ensure that the ultimate allegiance of the secretary is to the integrity of the electoral process, and not to any political party.

Alliance for Justice Amicus Brief in WRtL Case

You can find it here.

"Do 527's Add Up to a Party? Thinking About the 'Shadows' of Politics"

Richard M. Skinner has written this article in The Forum.

"Florida's felons no nearer to voting"

The Orlando Sentinel offers this report.

"Citizens Must Drive Electoral Reform"

Heather Gerken writes this Roll Call commentary (paid subscription required), which begins: "In his column on the failure of redistricting initiatives to pass in Ohio and California last week, Stuart Rothenberg gets the diagnosis right (“On Redistricting, Voters Have Spoken Up for the Status Quo,” Nov. 10). But, like most U.S. reformers, he overlooks a promising cure for the problem he identifies — one that could help reformers overcome the hurdles they face in getting reform through the initiative process."

Brennan Center Press Release on Felon Disenfranchisement Cert. Denial

Here.

WRtL Opening Brief Filed

You can find it here.

Judge Alito as an Opponent of One Person, One Vote?

Today the Reagan and Bush (41) libraries released a small set of documents related to Supreme Court nominee Samuel Alito. What has received the most attention so far is this job application for a senior Justice Department position in the Reagan White House, because of the nominee's statements about abortion. But the application (pdf page 15) also includes the following sentence (thanks to Sam Hirsch for pointing this out to me): "In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment." (emphasis added)

It would not surprise me at all for this reference to reapportionment to become a major issue in the campaign against Judge Alito, with an effort (fairly or not) to paint him as an opponent of the one person, one vote rule and voting rights. This tactic was attempted against Judge McConnell when he was up for a 10th circuit judgeship, where the People for the American Way accused him of opposing the one person, one vote rule. (See page 2 of this response by Professor Doug Laycock to the charges.) The charges against Judge McConnell were easy to rebut because his writings made clear that he did not oppose the reapportionment cases of the Warren Court---only the way in which the Court went about dealing with grossly malapportioned districts. (McConnell would have used the Guarantee Clause rather than the Equal Protection Clause, and would have allowed more deviations from strict mathematical equality than allowed by the Warren Court.)

But the statement made by Judge Alito against the Warren Court's reapportionment precedents is unqualified, allowing opponents to charge that he would go back to the days of severely malapportioned districts--and all the potential bad consequences for representation that accompany large disparties in voting power. I suspect this issue will be probed at the confirmation hearings, and could prove important.

"White Voters in Mississippi Allege Voting Discrimination"

NPR offers this audio report. Thanks to Alec Ewald for the link.

"PERSPECTIVE: 2000 election saga endures"

A.P. offers this report, which begins: "An Ohio election-law fight - five years running - illustrates the evolving state of campaign finance amid new federal laws and the ongoing realignment of the U.S. Supreme Court, a professor who teaches election law says. The Ohio Elections Commission made two rulings on Thursday that, combined, may have changed the status of issue advocacy groups that have not had to adhere to state election laws because they do not promote the election or defeat of a specific candidate."

Election Law opinions in the Washington Post

Today the newspaper offers two editorials, Redistricting Defeats and No Recess (about FEC appointments). Bob Bauer comments on the both editorials, and Allison Hayward focuses on the FEC editorial.
Yesterday in the Post, Juliet Eilperin had this commentary, "You Can't Have a Great Election Without Any Races."

Cert Denied in Florida Felon Disenfranchisement Case

So reports Lyle Denniston here. The Court did so even in the face of a circuit split on the issue. As I noted here, "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."
UPDATE: Here is a Reuter's story. And there was no ruling again today in the Texas redistricting cases.

John Bonifaz May Run for Secretary of State in Massachusetts

See here.

"An Opening for Democrats, However Slim"

Th e New York Times offers this report. A snippet: "Even the most optimistic Democrat has to wonder, deep down, whether big, 1994-style change is possible in the current House. Redistricting and other incumbent protections have created a Republican fortress in recent years, with so little turnover that even the party's relatively narrow majority is very hard to crack. "

"Recent Experience Aside, in Politics Wealth Isn't All"

The New York Times offers this report.

"Prop. 77 had foes in House; Congress members gave cash in final days to fight redistricting measure"

The Sacramento Bee offers this report.

"Prop. 77 had foes in House; Congress members gave cash in final days to fight redistricting measure"

The Sacramento Bee offers this report.

"Democrats Losing Race For Funds Under Dean"

The Washington Post offers this report, which begins: "The Democratic National Committee under Howard Dean is losing the fundraising race against Republicans by nearly 2 to 1, a slow start that is stirring concern among strategists who worry that a cash shortage could hinder the party's competitiveness in next year's midterm elections."

"Civil Rights Focus Shift Roils Staff At Justice; Veterans Exit Division as Traditional Cases Decline"

The Washington Post offers this report. A snippet: "The Bush administration has filed only three lawsuits -- all of them this year -- under the section of the Voting Rights Act that prohibits discrimination against minority voters, and none of them involves discrimination against blacks. The initial case was the Justice Department's first reverse-discrimination lawsuit, accusing a majority-black county in Mississippi of discriminating against white voters."

"Federal case could affect future campaigns"

A.P. offers this report, which begins: "The federal case against one of President Bush's boosters in Ohio is a signal to political campaigns that they will suffer more grief than usual if their biggest fundraisers run afoul of campaign finance laws. Criminal provisions of the 2002 Bipartisan Campaign Reform Act, also known as 'McCain-Feingold,' were invoked in the Oct. 27 arrest of coin dealer Tom Noe, a leading GOP fundraiser in the Toledo area. The Justice Department says it's the largest case of its kind under the law."

Leib, Gerken and Elmendorf on Citizen Assemblies

See here and here.

Ulrich on Initiative Process

Roy Ulrich has written an oped, The Initiative: A Force for Good or Evil for the San Diego Union Tribune.

Michigan Voting Rights Project Releases Report, Provides Database Useful to Others

See here. The headline of the accompanying press release is "Racial Discrimination Lawsuits Indicate Voting Rights Act Still Needed."

Adam Bonin Responds to Shays and Meehan

See here.

"For Election Reform, a Heartening Defeat"

Sam Hirsch and Tom Mann have written this must-read oped in today's NY Times.

Felon Wins School Board Election, After Apparently Lying on His Declaration of Candidacy

This news has been getting some attention in Southern California. I heard Shaun Bowler on the radio yesterday attributing the felon's election to the ballot order effect----the felon was listed first.

New 5 Volume Compendium: United States Commission on Civil Rights: Reports on Voting

You can find information about this important set edited by Jack Chin and Lori Wagner here.

"Dover won't challenge Scott's election"

See this news from New Hampshire, which begins: City officials plan no action against newly elected councilor David Scott, who violated campaign rules by overspending during his race for the City Council. But they indicated that if a resident files a complaint the city will investigate it. A subsequent court decision could disqualify the defendant and allow for fines." Another snippet: "On election day, Scott said he was aware of the spending limits, but feels they do not apply as the Constitution of the United States gives him the right to spend as much as he wants to promote himself. According to the documents he filed, Scott only received $1,095 from others, but contributed $626 of his own money."

"Florida High court strikes down election law"

AP offers this report, which begins: "A law that let the secretary of state refuse a candidate's request to quit the ballot is unconstitutional, the Florida Supreme Court said Thursday although the Legislature earlier this year had repealed the statute."

"Students: Renew Voting Rights Act"

The Michigan Daily offers this report.

Gerken and Elmendorf on Citizen Assemblies to Confront Redistricting Reform

See this post by Heather Gerken and Chris Elmendorf on the failure of redistricting measures in California and Ohio. I'll be offering my own take on this soon.

"State to study late vote counts"

AP offers this report, which begins: "Election boards in some Ohio counties are irate and embarrassed by vote-counting delays that held up results for hours, and state officials said Thursday they will try to find out what went wrong. Machine problems were blamed in some counties, lack of training in others as nearly half of Ohio's 88 counties used touch screen or optical scan systems for the first time."

Prop. 77 is Over, But the Litigation Lives On!

The California Supreme Court has set December 7 as the day to hear oral argument in the Prop. 77 case, raising the question of the propriety of pre-election review of initiatives. This even though Prop. 77 went down to defeat on Tuesday. I think this is a very good development from the point of view of clarity of the law. As I argued in this oped, the state of the law as it is now is a mess.

FEC General Counsel's Draft Opinion in "Fired Up" Matter Would Treat Blog/Website as Entitled to Press Exemption for Its News and Commentaries

This draft advisory opinion, if adopted, would go a long way toward exempting a number of blogs from many campaign finance regulations. (Via Bob Bauer). The Skeptic weighs in too. In related news, bloggers Kos and Krempasky (Daily Kos and Redstate, respectively, has written this letter opposing the Shays-Meehan internet campaign finance bill. UPDATE: Shays-Meehan respond.

Alabama Felon Disenfranchisement Case

Ed Still has filed a case attacking Alabama's felon disenfranchisement administration. For details, see here.

Redistricting Briefing

The following announcement arrived via e-mail:

Redistricting Reform After the Ohio and California Initiatives

Tuesday, November 15, 2005
9:30 a.m. - 11:00 a.m.

The Brookings Institution
Falk Auditorium
1775 Massachusetts Avenue, NW
Washington, DC

On Tuesday, November 8, voters in California and Ohio rejected state constitutional amendments that would reform the process for redrawing congressional and legislative districts. Opponents of the measures cheered the prevention of a "partisan power grab," while supporters lamented their failure to de-politicize the redistricting process.
Though the results from the Ohio and California initiatives are settled, the issue of redistricting remains alive and controversial. As political polarization increases and electoral competition decreases, the question of how legislative district boundaries are drawn will only grow more pressing.

Three of the country’s leading experts on redistricting will discuss the initiatives and their impact on the future of redistricting reform. Brookings Senior Fellow Thomas Mann will moderate the discussion with Bruce E. Cain, the Robson Professor of Political Science at the University of California, Berkeley, and director of its Institute of Governmental Studies, and Michael P. McDonald, assistant professor of government and politics at George Mason University and a Brookings visiting fellow. Mann, Cain, and McDonald are also contributors to Party Lines: Competition, Partisanship, and Congressional Redistricting (Brookings 2005).



Posted by Rick Hasen at 11:29 AM

"On Redistricting, Voters Have Spoken Up for the Status Quo"

Stuart Rothenberg offers this Roll Call column (paid subscription required).

"Supreme Court Asked to Hear Voting Rights Case"

Legal Times offers this preview of Johnson v. Bush, currently before the Supreme Court on a petition for certiorari. The case raises constitutional and section 2 of the Voting Rights Act claims against Florida's disenfranchisement laws. My earlier coverage of the case is here and I discuss the case in my forthcoming Howard Law Journal article on the constitutionality of Congress barring state felon disenfranchisement laws.

"Why Vote on Tuesdays?"

David Broder writes this Washington Post column.

Linda Chavez Against Section 5 Reauthorization

Linda Chavez has written this oped, which begins:

The Voting Rights Act has long been regarded as one of the nation's most successful civil rights laws, ending decades of discrimination that disenfranchised millions of black voters in the Deep South. But Congress is now considering whether to extend certain provisions of the act, which would otherwise lapse in 2007. One provision, usually referred to as Section 5 of the act, requires specific jurisdictions to submit to the Department of Justice for pre-clearance any proposed changes in voting procedures, such as moving polling places or redrawing district boundaries. Another provision, known as Section 203 or the Bilingual Election Requirements, forces hundreds of jurisdictions across the country to print ballots in languages other than English -- an expensive and divisive practice. Neither of these sections of the act should be reauthorized, but Congress may find it difficult to do the right thing.

"GOP reform plan needed, expert says"

The Toledo Blade offers this report.

Ewald on Felon Disenfranchisement Practices

Be sure not to miss A Crazy Quilt of Tiny Pieces: State and Local Administation of American Criminal Disenfranchisement Law by Alec Ewald for the Sentencing Project. This is a very important piece of work and should be read especially by those who support fairly applied felon disenfranchisement laws.

Sen. Obama on Election Fraud

The following press release arrived via email:

WASHINGTON – U.S. Senator Barack Obama (D-IL) Tuesday introduced legislation to protect Americans from using tactics that intimidate voters and prevent them from exercising their rights on Election Day.

Obama’s legislation, the Deceptive Practices and Voter Intimidation Prevention Act of 2005, would make it illegal for anyone to knowingly attempt to prevent others from exercising his or her right to vote by providing deceptive information and would require the Attorney General to fully investigate these allegations. The legislation would also require the Attorney General, in conjunction with the Election Assistance Commission, to provide accurate election information when allegations of deceptive practices are confirmed....

More Worries About the "New Federalism" and Section 5

See this post by Lyle Denniston on arguments in the two Georgia ADA cases argued today in the Supreme Court. For background on why I worry about these cases in terms of the Voting Rights Act, see here. My friend Sam Bagenstos argued this case, and I hope he'll post a report on his Disability Law Blog. Update: Kevin Russell of SCOTUSBlog offers a different take on the oral argument.

"The Uncertain Congressional Power to Ban State Felon Disenfranchisement Laws"

I have posted the following draft article on SSRN. Here is the abstract:

Abstract:
This article, prepared for a voting rights symposium to appear in the Howard Law Journal, considers congressional power to ban state felon disenfranchisement laws. Although courts in other countries have held that the practice of denying the right to vote to felons (or ex-felons) violates constitutional guarantees, the U.S. Supreme Court has held that the practice usually does not violate the U.S. Constitution. Current controversy in lower federal courts swirls over whether section 2 of the Voting Rights Act may bar certain state felon disenfranchisement laws. This article looks beyond that controversy to the constitutional question: If Congress passed a clear law barring the state practice of disenfranchising felons (or ex-felons), would the Supreme Court uphold such a law as a permissible exercise of Congressional power to enforce the 14th or 15th amendments? The most promising, but still quite uncertain, basis for congressional power is that a felon disenfranchisement ban enforces equal protection guarantees against race discrimination under the 14th amendment and enforces the right to vote free of race discrimination under the 15th amendment. In particular, the federal government could argue that it is intentional past (and potentially present) race discrimination in this country that leads to cycles of poverty in minority communities, and that such poverty makes it more likely that members of these communities will be arrested. In addition, the government could argue that state discrimination in the administration of the criminal justice system makes it more likely that minorities will be convicted of felonies and therefore disenfranchised. The article concludes that in light of the Supreme Court's new federalism jurisprudence it is uncertain whether the Supreme Court would uphold such a law on this basis as a permissible exercise of congressional power, leaving state legislatures as the prime locus for changes to felon disenfranchisement laws.

Does the failure of redistricting reform doom the chances of constitutional limits on partisan gerrymandering?

So suggests Mickey Kaus:

Anti-gerrymandering reform lost in both California and Ohio. You might say it's time to take the fight to the courts--and there are valid constitutional arguments to be made, along Baker v. Carr lines, against partisan or pro-incumbent gerrymanders. But isn't it kind of difficult to argue that the courts need to intervene to make democracy fair after the voters, in a perfectly fair, non-gerrymandered state-wide election, have rejected the idea? This doesn't seem like a case of minority rights, where the majority's opinion shouldn't count. The vast majority of California voters are denied the chance to cast an effective ballot because they live in manipulated districts where the incumbent can't lose. They don't seem to care! Who are judges to tell them they should?

In this sense, the pro-reform movement is arguably worse-off than if the voters had never been asked. ...

"Make Voting Easier. Weekend Elections Would Be a Start"

Norm Ornstein offers this Roll Call commentary (paid subscription required). A snippet, for those who have been following the Carter-Baker Commission controversy:

Moving Election Day to the weekend is no panacea. It ought to be done in conjunction with a series of other reforms, some of which have been suggested by election officials and others of which were included in the recommendations by the Carter-Baker Commission on election reform, co-chaired by former President Jimmy Carter and former Secretary of State James Baker.

Their commission has been given a bum rap, heavily criticized for one of its recommendations — that we move to a required photo ID for voting. Carter-Baker had made this recommendation with a series of caveats. Under current federal law, there will be a requirement in a few years that a photo identification, the REAL ID, be used for homeland security purposes. If such a requirement is to exist anyhow, why not use it as well for voting? At the same time, the commission said that any photo ID requirement must provide the IDs free of charge to everyone who lacks them and make them readily accessible. The panel did not accept the noxious Georgia standard, which is a latter-day poll tax.

But leave the controversial ID requirement aside and the other recommendations are important and necessary. These include moving rapidly to update statewide voter registration lists, to make them interoperable across states, to make sure that polling places have enough machines with adequate paper trails for validation and recounts, and to have enough trained poll workers.

"Bilingual ballot up for congressional vote"

The Chicago Sun-Times offers this report on the latest of a series of House hearings on renewing the expiring provisions of the Voting Rights Act.

California, Ohio Election Reform Initiatives Go Down to Defeat

AP has this wrap-up. This AP report credits the Judge Wapner ads for the defeat of Proposition 77 in California.

Voting Problems throughout country

Those who think we made enough improvements in election administration should think again. In California, Gov. Schwarzenegger had to cast a provisional ballot. A report from Virginia says that some voters are having trouble casting their votes for the Democratic gubernatorial candidate. More problems in Ohio.
UPDATE: Apparently the California governor was allowed to cast a regular ballot. The story was not clear to me on this point. It is very troubling, however.

Brazile on Vermont Spending Case

Donna Brazile has written a commentary, "Vermont Case Offers Chance to Embrace Spending Limits," for Roll Call (paid subscription required). A snippet:

What’s wrong with reasonable spending limits that leave plenty of cash to run great campaigns but also level the playing field and allow plenty of time for the real work of campaigns and governance?

There’s nothing wrong with that, and a lot that’s right. Opponents will raise the constitutional issues they always do on the topic, but if we truly want our democracy to remain a representative, responsive and honest one, we desperately need a conversation about our current campaign finance system. That’s why seasoned politicians from across the partisan divide — from former Sens. Bill Bradley (D-N.J.) to Alan Simpson (R-Wyo.) — support campaign spending caps. It’s long past time to put this good idea on the table.

"Americans want voting practices to change, poll reveals"

The Toledo Blade offers this report, which begins: " Results of a bipartisan poll released yesterday, the eve of Election Day, found that nearly two-thirds of those surveyed think the American way of voting needs to be changed, but no majority emerged in favor of weekend voting." If anyone has a link to the actual survey, please send it along.
Update: It is here.

"Record amount raised for initiatives"

The San Jose Mercury News offers this report.

Worries About a Recount in Va. Governor's Race

See here.

Panel on Nominations and Judicial Politics

The Ohio State Law Journal is holding a symposium tomorrow, "The Madness in the Shadows of Modern Life: Judicial Security and Politics in the 21st Century." The second panel is on nominations and judicial politics.

FEC Commissioners Debate Internet Exemption

Commissioner Toner's comments are here and Commissioner Thomas's response is here. Bob Bauer weighs in here.

New book on redistricting

Brookings has published Party Lines: Competition, Partisanship, and Congressional Redistricting edited by Tom Mann and Bruce Cain. Here is the description:

The legitimacy of the American electoral system depends on sustaining reasonable levels of fairness, accountability, responsiveness, and common sense. Recent Congressional elections fly in the face of those requirements, however, with a startling lack of competition, growing ideological polarization, and a fierce struggle between the parties to manipulate the electoral rules of the game. Party Lines addresses these problems head on in an authoritative and timely analysis of redistricting in the United States.


The practice of state legislatures redrawing district lines after the decennial census has long been a controversial aspect of our governing system. Recent developments have added new urgency to earlier debates. The sorry spectacle of mid-decade partisan gerrymandering in Texas renewed public attention to the potential problems of redistricting, reinforcing the view that it is unfairly dominated by self-serving elected officials and parties. The perfunctory character of Congressional elections is another growing problem: in 2002, only four House incumbents were defeated in the general election, the lowest in American history. Despite a hotly contested presidential contest in 2004, that number increased by only three.


In Party Lines, eminent political analysts explain the legal and political history of redistricting since the one person–one vote revolution in the 1960s and place it in the larger context of American politics. The authors document the impact of redistricting on competition, polarization, and partisan fairness, and they assess the role technology played in the redistricting process. The final chapter analyzes options for reform, including most importantly the use of independent redistricting commissions as an alternative to the normal state legislative process. Redistricting reform is no panacea but it is a start toward ensuring that American voters still have the largest say in who will represent them.


Contributors include Micah Altman (Harvard Universtity), Bruce Cain and Karin MacDonald (University of California, Berkeley),Cherie Maestas (Texas Tech), Sandy Maisel (Colby College), Thomas Mann (Brookings), Michael McDonald (George Mason University), Nathaniel Persily (University of Pennsylvania), and Walter Stone (University of California, Davis).

When Your Computer and TV are One

I have expressed here some concerns about the failure to have any regulation of political communications over the Internet once there is no dividing line between the two media. Apropos this discussion, A.P. offers Yahoo, TIVO to Blend TV, Web Services. The day is not far off.

Georgia Voter ID Controversy Makes Doonesbury

See here.

Apparently No Ruling in Texas Redistricting Cases Today

Perhaps the case is to be relisted again for the next conference.

"Why Vote?"

According to the authors of this Freakonomics column in Sunday's NY Times, at least part of the answer is social esteem. I explored this question back in 1996 and collected the relevant literature in "Voting Without Law?" 144 University of Pennsylvania Law Review 2135 (1996).

"GOP admits it erred in challenging some voters' registration"

The Seattle Times offers this report. Thanks to Jeff Hauser for the pointer.

"Terminator v. Gerrymander"

Jill Stewart has this oped in today's NY Times.

"FEC Hopes to Finish Rewrite by Late Feb."

Roll Call offers this report (paid subscription required). These regs inclde the internet campaign finance regulations that have been so controversial. Note also the end of this article: "In addition, due to a retirement, the FEC is down one member. Three of the five remaining commissioners are serving on expired terms. Recess appointments are expected when Congress adjourns."

"FEC Hopes to Finish Rewrite by Late Feb."

Roll Call offers this report (paid subscription required). These regs inclde the internet campaign finance regulations that have been so controversial. Note also the end of this article: "In addition, due to a retirement, the FEC is down one member. Three of the five remaining commissioners are serving on expired terms. Recess appointments are expected when Congress adjourns."

"Eligible to Vote in Arizona? Prove It"

The Los Angeles Times offers this report, which begins: "A stringent new voter identification law being put into effect in Arizona — designed to keep illegal immigrants from voting — will also prevent thousands of legitimate voters from casting ballots Tuesday, election officials say."

"Election-reform admendments draw definite battle lines in state"

The Toledo Blade offers this report.

New Eighth Circuit Campaign Finance Decision

In Minnesota Citizens Concerned for Life v. Kelley, the 8th Circuit considered the constitutionality of a number of Minnesota campaign finance rules, including an aggregate contribution limit. The discussion of aggregate contributions is especially interesting, and the tone is so different from the Eighth Circuit opinions we had seen before the Supreme Court's decisions in Shrink Missouri and McConnell.

Why Is This New Jersey Law Constitutional?

NJ.com offers Court tells Dems to ax Forrester ad about an alleged violation of a New Jersey law that appears to make it illegal for political parties to engage in independent spending opposing a gubernatorial candidate. Isn't such a law unconstitutional under Colorado Republican I? (Thanks to Brian Nelson for the pointer, who also points to this interesting story).

"Could it be... a campaign finance loophole?"

Marketplace offers this audio report.

"Connecticut Must Shed Its Legacy of Corruption"

James Sample had this oped Sunday in a Connecticut newspaper. It begins: "One year since the resignation of Connecticut's former Republican Gov. John Rowland, and only one month removed from the resignation of a Democratic state senator on bribery charges, the Constitution State has a momentous opportunity to reclaim its good name. Now, in the wake of scandal, citizens find an unexpected cause for hope. State leaders of both parties have the power to pass sweeping state campaign finance reform. If enacted, it could quickly transform Connecticut from a model of corruption to a model of government."

"Blogged Down"

Investor's Business Daily offers this editorial, which begins: "Campaign Finance Reform: Could it be that nearly 200 members of our esteemed House of Representatives simply don't recognize the First Amendment? Yes, it could, and it's a telling commentary on our condition."

Interesting Politicians in Trouble Stories

As readers of this blog know, I don't usually blog these kinds of stories, relying upon Ed Still to keep me up to date. But these two stories caught my eye this morning:

The NY Times reports that "Representative Tom DeLay asked the lobbyist Jack Abramoff to raise money for him through a private charity controlled by Mr. Abramoff, an unusual request that led the lobbyist to try to gather at least $150,000 from his Indian tribe clients and their gambling operations, according to newly disclosed e-mail from the lobbyist's files."

The LA Times reports that "U.S. Rep. Dana Rohrabacher (R-Huntington Beach) used his influence to open doors in Washington for a Hollywood producer pitching a television show after the producer paid him a $23,000 option on a screenplay, records and interviews show."

"Drug Firms Gave Money to Some Who Endorsed Proposition 78"

The LA Times offers this front-page report. See also this Q&A with Edwin Bender on campaign donations.

"System Failure: Congress should have passed the Online Freedom of Speech Act"

Allison Hayward has written this National Review Online commentary.

Reargument in WRTL Case?

As I've noted, the Supreme Court will hear a major campaign finance case on January 17. January 17 has now been announced as the target date for a Judicary Committee to vote on the nomination of Judge Alito for Justice O'Connor's seat. Thus, even if all goes according to plan and there is no attempted filibuster of Judge Alito's nomination, Justice O'Connor is going to be on the bench for the WRTL argument. If Judge Alito is confirmed, Justice O'Connor won't be there fore the decision in the case.

There is good reason to believe that without Justice O'Connor the current Court could divide 4-4 on the lurking question in WRTL: is it constitutional to bar corporate expenditures in candidate elections? If that's the case and Judge Alito is confirmed, expect a reargument of the case before any decision, where Judge Alito's vote will be pivotal to the outcome.

"Lessons from the Clash Between Campaign Finance Laws and the Blogosphere"

I have posted on SSRN this short essay forthcoming in a Nexus Law Journal symposium on blogging and the law. Here is the abstract:

Abstract:
In this essay prepared for a Nexus Law Journal symposium on blogging and the law, Professor Hasen examines the current controversy over whether campaign finance laws should extend to election-related activities conducted over the Internet. Until recently, Federal Election Commission (FEC) regulations exempted Internet-based election communications from the reach of much campaign finance law. The status quo changed when a federal district court recently held that the FEC must impose some regulations of these communications consistent with Congress's intent in passing the Bipartisan Campaign Reform Act of 2002. The FEC Internet rulemaking sparked a blogstorm of protest, and as of this writing the FEC had not yet promulgated a final rule. Whatever rule the FEC does promulgate is sure to be challenged by some aggrieved party in court, though it is possible that Congress will act first to exempt such communications, or at least attempt to do so, from the ambit of campaign finance laws.

Regardless of the final outcome of this rulemaking, the clash tells us some important things both about the nature of speech in the blogosphere and about the tenability of campaign finance laws in the era of cheap speech and shifting technology. First, the line between journalism and blogging is thin indeed. Second, many bloggers view their activities as more worthy of protection than traditional political communications, but they shouldn't. Third, the convergence of journalism and blogging, and of internet and television, will put pressure on rules limiting corporate and union participation in the election process. My main conclusion is that this debate will be fruitful only if one identifies the proper goals of campaign finance regulation. If we structured our campaign finance system to prevent corruption, promote equality, and provide valuable information to voters, we would do little to limit the political activities of bloggers, but we would impose some sensible disclosure rules. In implementing rules to meet these goals, we should be aware of the danger that the new sensible exemptions for blogging today can have unintended and far-reaching consequences tomorrow.

"Voter ID amendment advances"

See this news from Wisconsin. Thanks to David Kimball for the pointer.

Alito Compared to O'Connor on Election Law

I hope to write more about this soon. In the meantime, A.P. reports "Alito Could Shift Court on Major Issues," which quotes me as follows:

"Justice O'Connor has been the key vote in everything from campaign finance to the meaning of the Voting Rights Act to racial gerrymandering to Bush v. Gore," said Richard Hasen, a Loyola Law School professor specializing in elections.

Conference on presidential public financing

The following announcement has arrived via e-mail:

Presidential Public Financing: Repairing The System

December 9, 2005, from 9 AM and Noon

Senate Hart Building Room 902


The Campaign Legal Center, Democracy 21, FEC Chairman Scott Thomas and Vice Chairman Michael Toner would like to invite you to attend a very important conference on the Presidential Public Funding System.

As we are all aware, the Presidential Public Funding System, which served the country well over the years, badly needs repair and reform. This conference will discuss the reasons for the system and its current problems. We also will discuss with Members of Congress, campaign finance experts, and others the changes needed to repair the Presidential Public Financing System and why Congressional action is needed before the 2008 elections.


To RSVP or for additional information, please contact Megan Brimhall, at mbrimhall@campaignlegalcenter.org or 202-736-2200.


Posted by Rick Hasen at 08:23 AM

"The Shape of Representative Democracy" Report Now Available

You can find it here. From the press release:

Washington - Broad principles to reform congressional and legislative redistricting were announced today by a range of groups and individuals who are advocating the use of independent commissions to create competitive districts.

The principles were drafted by a group of experts with diverse backgrounds and political affiliations at a redistricting reform conference held last June in Airlie, Virginia. They are part of a report entitled The Shape of Representative Democracy and lay out an integrated approach that addresses both procedures for redistricting and standards for redistricting.


The procedural principles include: assigning the job of redistricting to an independent commission; ensuring transparency and a meaningful opportunity for interested parties and the public to participate effectively; and limiting redistricting to once a decade, following each census.


The recommended substantive standards for redistricting are: adhering to all constitutional and Voting Rights Act requirements; promoting competitiveness and partisan fairness; respecting political subdivisions and communities of interest; and encouraging geographical compactness.

More Prop. 77 News and Opinion

Here, here, here, and here.

"Internet campaign-finance carve-out fails in House"

Reuters offers this report.

"Expert: Ohio case might make politicians take closer look at donors"

A.P. offers this report, which begins: "The recent arrest of an Ohio man accused of illegally funneling donations to President Bush's re-election effort could force politicians to take more careful account of how their biggest boosters conduct fundraisers, a former federal election commissioner said." The "commissioner" in the story is Larry Noble, who served as general counsel to the FEC and has been suggested as an FEC commissioner, though he has not served in that position.

In the Election Law Mailbag

I have just received the following new books and articles:

Colin Feasby, Freedom of Expression and the Law of the Democratic Process, 29 The Supreme Court Law Review (2d Series 2005) (Canadian election law)

Mark Brown, Ballot Fees as Impermissible Qualifications for Federal Office, 54 American University Law Review 1283 (2005)

The Final Arbiter: The Consequences of Bush v. Gore for Law and Politics (Christopher P. Banks, David B. Cohen and John C. Green eds., SUNY Press 2005)

The Battle for Florida: An Annotated Compendium of Materials from the 2000 Presidential Election (Lance deHaven-Smith, ed., University Press of Florida 2005).

In addition, it looks like every article in Volume 33, No. 6 of American Politics Research will interest those interested in election law. For the current contents, see here.

"A Vote for Free Speech"

John Samples offers these thoughts on the internet campaign finance bill now before the House.

"Campaign finance reform plan draws opposition"

C|NET News offers this report, accompanied by what appears to be the most confusing campaign finance graphic of all time.

"Experts: Prop. 77 has national implications"

The North County Times offers this report. Meanwhile a new poll by the LA Times finds only 34% support for the measure. But the special election has at least been good for election lawyers, political consultants and T.V. stations with an expected $300 million price tag.

"Reform Redistricting"

Roll Call offers this editorial, which begins: "Shame on Ohio Republicans, California Democrats and Florida Republicans: They are shouting vociferously, and spending extravagantly, to defeat redistricting reforms that would inject competition and citizen choice into U.S. House and state legislative campaigns."

"GOP Help Sought on Post-Katrina Voting"

Roll Call offers this report (paid subscription required). It begins: "Rep. Artur Davis (D-Ala.) said Tuesday that he would continue to publicize Democratic-sponsored legislation intended to guarantee absentee voting privileges to Gulf Coast residents displaced by recent hurricanes in an attempt to gain Republican backing for the bill. The legislation introduced in mid-September, the Displaced Citizens Voter Protection Act of 2005, has gained 38 co-sponsors. But so far, only Democrats have signed on."

Should Congress Use Renewal of the Voting Rights Act to Overrule Section 5's Interepretation in Bossier Parish II?

So argues Mark Posner in this must-read testimony before a subcommittee of the House Judiciary Committee. UPDATE: Roger Clegg's testimony to the contrary on Bossier Parish is here and Brenda Wright's testimony recounting the litigation of Bossier Parish is here.

"Congress Should Find a Way to Protect the Internet"

Bob Bauer has written this Roll Call oped (paid subscription required, but excerpts without a subscription here).

"Markowitz: GOP 'sore losers' rule can't trump law"

See this news from Vermont.

"Law students release voting discrimination findings; panel to discuss Voting Rights Act"

The University of Michigan has issued this press release.

New at the Moritz Election Law Site

Ned Foley argues no on Issue 3 (campaign finance) and yes on Issue 4 (redistricting). Travis McDade compares the Ohio and California redistricting initiatives. According to an October 26 newspaper report, Issue 3 appears to be polling better than Issue 4.

"Plight Of The Displaced Voter"

Eliza Newlin Carney writes this very important column in the National Journal, which begins: "Storm-battered Gulf Coast states have already canceled some elections this fall, and may have to postpone still more next year. That's alarmed some on Capitol Hill who warn that the political ripple effects could be far-reaching."

California Redistricting Initiative Failing Badly in Latest Poll; Governor's Best Hope is "Selective" Turnout

See here and here.

Wisconsin Right to Life Case to Be Argued Jan. 17 in the Supreme Court

See the calendar here. The Vermont case will apparently be set for an argument after January. Thanks to Marty Lederman for the link.

"Internet CFR Bill on Deck"

Roll Call offers this report (paid subscription required), which begins: "The House is set to take up a bill this week that would exempt the Internet from campaign finance laws. The measure is on the suspension calendar for Wednesday. Bills brought up under the suspension of normal rules have to pass by a two-thirds majority vote and are usually, by their nature, uncontroversial." The NY Times editorializes against the bill, and Allison Hayward editorializes against the Times editorial. Bob Bauer supports the merits of the bill---if not the procedure for bringing it up.

Groups to Announce Redistricting Reform Principles

The following press release has arrived via e-mail:

A diverse and bipartisan group of experts will announce a set of consensus principles to reform congressional and legislative redistricting at a public briefing at 9:30 a.m. on Wednesday, November 2, 2005 in 1539 Longworth House Office Building. Members of the media are invited to attend.

The principles, to be released in a report entitled “The Shape of Representative Democracy,” are the product a two-day redistricting reform conference held last June. The report announces a set of principles divided into two categories – procedures for redistricting, and standards for redistricting – designed to “reform the country’s redistricting practices and improve our campaigns and elections, and more importantly our officeholders and governance.”

The briefing schedule is as follows:

Opening Remarks Hon. David Skaggs, former member of Congress,
Council for Excellence in Government

Comments Hon. Earl Blumenauer, Member of Congress, and
other Members TBA
Thomas Mann, Brookings Institution
Norm Ornstein, American Enterprise Institute
Kay Maxwell, President, League of Women Voters

Closing Remarks Trevor Potter, Campaign Legal Center


Call for Questions

Please RSVP to Megan Brimhall of the Campaign Legal Center at (202) 736-2200 or mbrimhall@campaignlegalcenter.org.

The redistricting conference was organized by the Campaign Legal Center, a non-partisan government reform group, and the Center for Democracy & Citizenship at the Council for Excellence in Government. The project was funded by generous support by the Rockefeller Brothers Fund, Carnegie Corporation of New York, the Council for Excellence in Government’s Venture Fund, the JEHT Foundation, the Reform Institute and the Educational Testing Service.

Responses to My Weak Prediction on Alito

Many people I respect have written me private messages to disagree with my earlier prediction that Judge Alito will not be confirmed. While I stand my my prediction at this time, I noted there that I did not have much confidence in the prediction (unlike, my earlier predictions on the Supreme Court nominations process that have mostly been proven right). I think much will turn on the public mood as the (inevitable) 30-second ads highlighting Judge Alito's position in the Casey case begin airing.
Mike Rappaport weighs in here. I will not be surprised if I am proven wrong in this instance.

UPDATE: The always perceptive Taegan Goddard of PoliticalWire sets out the latest thinking on the Gang of 14 agreement.