June 29, 2007

"Faux Judicial Restraint in Full View"

Law.com/The Recorder has posted my commentary on the Supreme Court's decision in WRTL this week. It begins:

    Earlier this week the Supreme Court took a major step toward the deregulation of American campaign financing with its decision in Wisconsin Right to Life v. FEC. Though the opinion is important for its actual holding -- corporations and unions are going to have a much easier time paying for election-related ads out of their general treasury funds rather than from harder-to-use political action committees (or PACs) --i its real significance is what it says about the court's new attitude towards money and politics in general, and Chief Justice John Roberts' views about how to best dismantle remaining liberal precedents on the court.

It concludes:

    Beyond campaign finance, the court's decision in WRTL shows precisely how Roberts intends to undo the remaining liberal precedents of the past. Rather than expressly overrule precedents with which he disagrees, he is more content to give the appearance of "tweaking" the law -- all the while doing radical surgery. It is similar to the way the court treated the abortion question earlier this term in Carhart, redefining (without expressly overruling) the "undue burden" standard to make it much easier for states to impose limits on abortion.

    No one is fooled, however. Scalia acidly noted in a footnote to his concurring opinion in WRTL that besides Roberts and Alito, the seven remaining justices on the court -- who agree about little else in the campaign finance arena -- agree that the chief's opinion essentially overrules McConnell: "This faux judicial restraint is judicial obfuscation."

    At his confirmation hearing, Roberts talked of judicial modesty and the building of judicial consensus. By those measures, his performance thus far has been disappointing, with a whole slew of 5-4 decisions coming down this term. But for those who want to see a radical sea change in constitutional law in the direction of conservatism and deregulation, the Roberts Court so far appears to be quite successful.

Bob Bauer responds, I think unfairly characterizing me as a knee-jerk supporter of reform. Two recent law review articles I've written on campaign finance (this one in Penn and this one in Ohio State) are quite critical of the New Deference Cases that characterized the end of the O'Connor Court. I've been no fan of the New Deference.

I am writing a much more extensive piece on WRTL, and it will respond to Bob's criticisms (as well as offer other analysis) in great detail.

Posted by Rick Hasen at 09:40 AM

"Sorry Now? What do the liberal and moderate lawyers who supported John Roberts' nomination say today?"

Emily Bazelon has this fascinating piece at Slate going back to liberals and moderates who supported the Roberts nomination and asking them what they think now about their choice. My favorite quote here is Cass Sunstein's: "I'm surprised that Roberts has shown no unpredictability at all; in the big cases, he's been so consistent in his conservatism. I thought that he was too careful a lawyer to be so predictable!"

Not all liberals and moderates took this view. In August 2005, I published Roberts' Iffy Support for Voting Rights in the LA Times. See also this Findlaw column on Justice Alito's nomination, noting: "In the last four decades, the Court has set out rules on everything from campaign finance to gerrymandering to minority voting rights -- even intervening in the 2000 presidential election fight in Florida in Bush v. Gore. And, in recent years, Justice O'Connor, whom Judge Alito might replace, has held the swing vote in the most important of these cases. For all these reasons, the Senate must press Judge Alito to clarify his views in this area. Judge Alito's views on these cases could be decisive on the Supreme Court, and the consequences for our political system could be enormous."

And in an academic piece written as Justice Alito joined Justice Roberts on the Court, No Exit? The Roberts Court and the Future of Election Law, I concluded:

    Making predictions is always dangerous, and the conclusions I reach should be taken in the tentative spirit in which they are made. My best guess is that a decade from now, we may well face a set of election law rules that differ a great deal from today's rules. It may be that in 2016, individuals, corporations, and unions will be free to give as much money as they want to any candidate or group, subject to the filing of disclosure reports. The federal government's ability to protect the voting rights of minority groups that historically have been the victims of state discrimination may be curtailed by the inability of Congress to require any jurisdictions to submit their voting changes for preclearance and by an emasculated reading of Section 2 of the Voting Rights Act. 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.

Time will tell how close my remaining predictions come to political reality.

Posted by Rick Hasen at 09:30 AM

Supreme Court Vacates and Remands in Christian Civic League v. Maine in Light of WRTL

Today's order list provides:

    06-589 CHRISTIAN CIVIC LEAGUE OF MAINE V. FEC, ET AL. The judgment is vacated and the case is remanded to the United States District Court for the District of Columbia for further consideration in light of Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. ___ (2007).

More background about the case, and links to documents here.

Posted by Rick Hasen at 09:13 AM

"WRTL and Tax Exemption: Possible Consequences of an Agenda-Setting Opinion"

Fran Hill has this post on the CLC Blog.

Posted by Rick Hasen at 09:07 AM

"Frontloading the Primaries: African Americans No Longer Marginalized "

Tova Wang has written this report for the Century Foundation.

Posted by Rick Hasen at 09:04 AM

"An architect of voter harassment needs no reward"

Cynthia Tucker offers this Atlanta Journal Constitution column, which begins: "Former metro Atlantan Hans von Spakovsky is among the GOP hacks who perverted the U.S. Department of Justice-- trashing constitutional principles, rewarding partisanship over competence and converting the entire machinery into an arm of the Republican Party. His specialty was suppressing voting by Americans of color, who are more likely to support Democrats; he played a starring role in a nationwide effort to disenfranchise poor blacks, Latinos and Native Americans."

Posted by Rick Hasen at 08:52 AM

"'Vote caging' allegations arise in probe of U.S. attorney firings; Critics say top Justice official's '04 letter to Ohio judge was a partisan maneuver."

McClatchy offers this report.

Posted by Rick Hasen at 08:49 AM

"Voter fraud cases dropped after inquiry"

The Olympian (Washington State) offers this report.

Posted by Rick Hasen at 08:47 AM

"Court rules for DeLay on election-code counts"

The Fort Worth Star-Telegram offers this report.

Posted by Rick Hasen at 08:45 AM

"Term-limit supporters seek probe of Perata"

The Sacramento Bee offers this report.

Posted by Rick Hasen at 08:43 AM

"Vote By Mail Doesn't Deliver"

Michael Slater and Teresa James have this commentary at Tom Paine.

Posted by Rick Hasen at 08:41 AM

June 27, 2007

"FEC Weighs Options After Ruling"

Roll Call offers this very important report ($) on the options the FEC faces in light of WRTL. It's not very pretty.

Posted by Rick Hasen at 09:09 AM

Voter ID Debate Hits Canada

See here.

Posted by Rick Hasen at 09:02 AM

"Senate Republicans Block Conference on Lobbying Overhaul Legislation"

CQ offers this report, which begins: "Senate Minority Leader Mitch McConnell, R-Ky., has blocked appointment of Senate conferees on the stalled lobbying bill, casting doubt on the future of the biggest overhaul of ethics and lobbying legislation in a dozen years."

Posted by Rick Hasen at 09:00 AM

In More Post-WRTL News and Commentary

How Big a Setback for McCain-Feingold appears at the Time Magazine blog.

Ruling Could Spur More Ad; Decision on Campaign Finance May Mean Influx of 'Soft Money' is in the Washington Post.

Brad Smith has written The Speech Police, an oped for the Wall Street Journal.

Bob Bauer blogs about Justice Scalia's WRTL concurrence.

Frank Pasquale blogs "Game over for Campaign Finance Reform?" at Concurring Opinions.

WRTL gets prominent play in the Breakfast Table conversations between Dahlia Lithwick and Walter Dellinger at Slate.

Posted by Rick Hasen at 08:58 AM

June 26, 2007

"House Bill Would Punish Voter Deception"

AP offers this report.

Posted by Rick Hasen at 12:57 PM

More on Vote Caging Allegations

Gerry Hebert

ePlurbus Media

Posted by Rick Hasen at 12:54 PM

More Commentary on WRTL

Martin Frost (Politico)

John Samples (National Review Online)

Paul Ryan (CLC Blog)

Posted by Rick Hasen at 12:50 PM

"Setting the Agenda in Election Law Scholarship; Coda: A Response to Friendly Critics"

Heather Gerken has this post at Balkinization.

Posted by Rick Hasen at 11:01 AM

"Independents don't change system; In a third-party run, Bloomberg would likely be what such candidates have been historically: spoilers"

Joshua Spivak has written this Newsday oped.

Posted by Rick Hasen at 09:16 AM

"Cage Match: Did Griffin Try to Disenfranchise African-American Voters in 2004?"

This must read post appears at TPMmuckraker. They've got the voter caging list and have analyzed it.

Posted by Rick Hasen at 09:13 AM

More WRTL Coverage and Reaction

NY Times (and editorial)

Washington Post (and editorial)

LA Times (and editorial)

Wall Street Journal (and editorial)

USA Today (and here)

NPR (and here)

Roll Call ($)

The Hill

The News Hour

Financial Times

Christian Science Monitor

Congressional Quarterly

NY Sun

Law.com

Lyle Denniston (in a must-read post)

Brad Smith

Allison Hayward (who sees the return of Furgatch---I'm not so sure)

Bob Bauer

My earlier roundup of materials is here. Apologies if I've missed something or someone. There's a lot out there this morning. Shoot me an email to link if there's something significant I have not seen.

Posted by Rick Hasen at 09:11 AM

June 25, 2007

Others' Initial Reactions to WRTL Decision

Some early news reports:

AP

Bloomberg

Reuters

Legal Times (Tony Mauro/Law.com)

Blogospheric reaction:

Rick Pildes

Marty Lederman

Richard Briffault

Bob Bauer

Interest group reaction:

Gerry Hebert, Campaign Legal Center

Democracy 21

My initial reactions are here.

More to come.

Posted by Rick Hasen at 02:26 PM

WRTL: Big Win for Campaign Finance Deregulation

Today's opinion is a major victory for those who oppose campaign finance regulation, and will likely lead to a new proliferation of corporate and union funded campaign ads in the 2008 election season. It has revealed the Roberts Court, as I have feared, as moving firmly into the deregulationist camp, with the Chief Justice and Justice Alito dressing up the opinion as a minimalist, incremental decision. My hope that Justice Kennedy's respect for stare decisis could save the corporate/union PAC requirement has been dashed. Here are a few observations:

1. In my writings on campaign finance, I have analogized the Supreme Court's campaign finance cases to the swing of a pendulum. We began with Buckley, which was a multi-authored schizophrenic opinion offering something (a ban on independent campaign expenditures by individuals) to those who believe that most campaign finance laws conflict with First Amendment rights of speech and association, and something else (upholding of campaign contribution limits) to those who believe that the government's interest in preventing corruption, insuring the integrity of the electoral process or promoting electoral equality (though the Buckley court itself eschewed that interest). The early post-Buckley cases, such as Bellotti, and NCPAC were deregulationist, and were followed by the period I've called the New Deference, where the four liberals on the Court, joined by Justice O'Connor, upheld a wide range of campaign finance laws, including major provisions of the McCain-Feingold law (the Bipartisan Campaign Finance Act, or BCRA) in a number of different cases. Last year's Randall decision showed Justice Breyer trying to salvage the campaign finance regime and prevent the Chief and Justice Alito from going to the deregulationist side. Today it is clear that those efforts have failed.

2. The Court today does not expressly overrule McConnell or Austin's holding that it is permissible to require corporations (and unions) to spend money on ads expressly advocating the election or defeat of a federal candidate (or "the functional equivalent of such ads") from a separate political action committee (or PAC) and not from general treasury funds. But the limit on corporate and union spending is now dead as a practical matter. The test that Roberts/Alito embrace is essentially the same, decontexutal see no evil approach of the lower court: if an ad can be viewed as not about electing a candidate (and instead about an issue), it must be viewed that way and exempt from the PAC requirement. Nothing makes the point better of how far this test goes to bar regulation of ads than the Chief's footnote 7:

    JUSTICE SCALIA thinks our test impermissibly vague. See post, at 11-12 (opinion concurring in part and concurring in judgment). As should be evident, we agree with JUSTICE SCALIA on the imperative for clarity in this area; that is why our test affords protection unless an ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. It is why we emphasize that (1) there can be no free-ranging intent-and-effect test; (2) there generally should be no discovery or inquiry into the sort of "contextual" factors highlighted by the FEC and intervenors; (3) discussion of issues cannot be banned merely because the issues might be relevant to an election; and (4) in a debatable case, the tie is resolved in favor of protecting speech. And keep in mind this test is only triggered if the speech meets the brightline requirements of BCRA s 203 in the first place. JUSTICE SCALIA's criticism of our test is all the more confusing because he accepts WRTL's proposed three-prong test as "clear." Post, at 17. We do not think our test any vaguer than WRTL's, and it is more protective of political speech.
(original emphasis)

3. Justice Alito in his concurrence says explicitly that even this test may not be sufficiently protective of speech, and he'd entertain a full facial challenge to BCRA. I have little doubt Chief Justice Roberts will go there eventually as well. But today he is able to achieve almost as good a result for the deregulationist side, without making headlines that the Court, by a 5-4 vote, has overruled one of its precedents from only a few years ago, thanks to the departure of Justice O'Connor. But we should not be fooled--for practical purposes, this is going to let corporations and unions spend vast sums on election-related advertising in 2008.

4. In earlier cases, Justice Kennedy had been somewhat hesitant about joining the full deregulationist position of Justices Scalia and Thomas. Now, I think he's likely on board as well with the full overruling of Buckley. While there might be some question over the constitutionality of some contribution limits, the main difference among the five conservative Justices will likely come over disclosure. As of now, only Justice Thomas has taken a strong anti-disclosure position.

5. What's next? Expect a full, frontal attack on McConnell, likely manufactured by Jim Bopp, as invited by Justice Alito (not to mention Scalia, Kennedy, and Thomas). Within a few years, expect the Court to take another campaign contributions case, revisit Randall, and reconsider whether even higher contribution limits violate the First Amendment.

Posted by Rick Hasen at 09:18 AM

WRTL on the Way?

Look for complete coverage here if the opinion is released at approximately 10 am eastern today. If not today, it should be released later this week.

UPDATE: It appears WRTL has been decided. More to come.

SCOTUSBLOG reports: "Completing a day of 5-4 decisions, the Court issued its fifth ruling of the day, concluding that a Wisconsin abortion rights group had a First Amendment right to aid during election season campaign ads that named a candidate running for the Senate. Three of the five Justices in the majority urged the Court to overturn the part of a 2003 ruling that upheld the constitutionality of the federal law restricting such radio and TV ads close to elections. The Chief Justice's main opinion, joined fully by Justice Alito, said the case did not provide an occasion to revisit that ruling. Justice Souter recited at length from the bench for the four dissenters -- who were in the minority on each of the day's rulings."
FINAL UPDATE: The opinion is now posted here (all 93 pages of opinions). A new post will provide analysis once I've had a chance to read and study this a bit.


Posted by Rick Hasen at 06:47 AM

"Whose PAC is That?"

The Politico offers this interesting report.

Posted by Rick Hasen at 06:44 AM

"President? Or Kingmaker?

The NY Times offers this Week in Review analysis on the chances that NY Mayor Bloomberg could control the deciding votes in the electoral college. Bauer also comments on a Bloomberg candidacy.

Posted by Rick Hasen at 06:39 AM

"Suppressing the Vote"

See this post at the Editors' Cut blog of The Nation.

Posted by Rick Hasen at 06:36 AM

June 23, 2007

Thanks to Dan Tokaji...

for doing his usual stellar job as a guest blogger while I was out. Thanks so much, Dan!

Posted by Rick Hasen at 08:50 AM

EAC Finally Responds to Tova Wang's Request to Lift Gag Order

You can find the EAC's letter here and Wang's lawyer's response here. Upon reading the EAC letter, I have to agree with Wang's lawyer that this is an inadequate and confusing response that does not clarify Wang's rights. I would have expected something clearer from the EAC. This is not over.

Posted by Rick Hasen at 08:48 AM

"Corporate Political Contributions: Investment or Agency?"

Aggarwal, Meschke, and Wang have posted this draft on SSRN. Here is the abstract:

    We examine corporate contributions to political candidates for federal offices in the United States from 1991 to 2004. We find that firms that donate have operating characteristics consistent with the existence of a free cash flow problem. Further, donations are negatively correlated with future excess returns. An increase in donations of $10,000 is associated with a reduction in excess returns of 4.9 basis points. When we instrument for donations, we find an even stronger negative association between donations and returns. We find that worse corporate governance is associated with larger donations and, through its impact on donations, leads to worse excess returns. Firms that make donations engage in more acquisitions and donating firms' acquisitions have significantly lower cumulative abnormal announcement returns than firms that do not make donations. When we try to isolate instances in which donations may lead to better returns, we find no support for the hypothesis that political donations represent an investment in political capital. Taken together, our results suggest that political donations are symptomatic of an agency problem.

Posted by Rick Hasen at 08:43 AM

New Controversy in Australia Over Tightening of Rules for Removing Voters from the Rolls

Is election administration getting politicized even in Australia? See this report from the Australian Broadcasting Company, that interviews Norm Kelly of the Australian Democratic Audit and former AEC head Colin Hughes.

Posted by Rick Hasen at 08:40 AM

Federal District Court in Illinois Upholds School District Plan Limiting to 3 of 7 the Number of Candidates Who Can Be Residents of a Particular Geographic Area

I have posted the opinion in Moore v. Putnam County Community School District # 535 here. [corrected link] Still no word on the constitutionality of Putnam County's spelling bee.

Posted by Rick Hasen at 08:34 AM

Third Circuit Decides Interesting New Political Patronage Case

Apolitical non-policymaking employees get the same protections against patronage employment practices as employees from the "out" party, according to this 2-1 decision from the Third Circuit. Link via How Appealing.

Posted by Rick Hasen at 08:26 AM

"Mike Bloomberg's Money"

The Wall Street Journal offers this editorial. A snippet: "Mayor Bloomberg, in his regular denials that he intends to run for President, likes to note that a 'short, Jewish, divorced billionaire' doesn't sound very electable. We're not sure how important the first three traits are, but the last, far from disqualifying him, is the main reason behind the Bloomberg boomlet. Unlike most other American politicians, he is rich enough to finance his own independent Presidential campaign. And thanks to our campaign finance laws, he's a rare candidate who doesn't have to raise money in hundreds of $2,300 or smaller increments."

Posted by Rick Hasen at 08:21 AM

Yes, It is Easy (and a misdemeanor) to Register a Dog to Vote; No, Dogs Don't Vote on Electon Day

See here.

Posted by Rick Hasen at 08:17 AM

"Bill put on hold in state Senate; Spanish-language voter-registration forms are debated"

The Winston-Salem Journal offers this report. Southern Studies has more on controversies over the "voter fraud" aspects of this bill.

Posted by Rick Hasen at 08:15 AM

"Mo High Court Weighing Campaign Finance Law"

The St. Louis Post-Dispatch has this report.

Posted by tokajid at 08:08 AM

"Spitzer Makes His Stand and Things Fall Apart"

The NY Times has this report on Governor Eliot Spitzer's efforts to overhaul New York's campaign finance system.

Posted by tokajid at 08:02 AM

Caging Commentary

Prompted by Congress' ongoing investigation of the Justice Department, Gerry Hebert and Margie Burns each offer thoughts on alleged vote caging by Republican operatives.

Posted by tokajid at 07:55 AM

"Thoughts on the Backroom of the Permanent Campaign"

Frances Hill has this post on the Campaign Legal Center Blog, prompted by yesterday's NY Times story on John Edwards' use of nonprofits. Hill, like Bauer, invokes Casablanca (I'm shocked, shocked ...).

Posted by tokajid at 07:41 AM

"Disclosure for Thee and Not for Me"

Invoking Casablanca ("This place is full of vultures, vultures everywhere!"), Bob Bauer shares these thoughts on watchdog groups' objections to a proposed disclosure requirement for those filing ethics complaints reported in The Hill.

Posted by tokajid at 07:34 AM

EAC Accredits New Voting System Test Lab

Exercising one of its responsibilities under HAVA, the Election Assistance Commission has accredited InfoGuard Labs, as the third voting system testing lab. See this press release. More on the accreditation process may be found here and here. Earlier this month, the EAC rejected an acceditation application from Ciber, Inc.

Posted by tokajid at 07:15 AM

June 22, 2007

"The Ups and Downs of Small and Large Donors"

The Campaign Finance Institute has issued this report, written by Michael J. Malbin and Sean A. Cain. From the press release announcing the report:

This is the first study in a multi-year effort, The CFI Small Donor Project. The aim of this new project is to understand the role of small donors, large donors and non-donors in state and national elections. The underlying policy goal is to foster democracy by working to increase financial and volunteer participation by the vast majority of people who participate at low levels, or who do not now contribute or volunteer at all.

The current study focuses on the relative importance of small and large contributions to federal political parties and candidates in the years before and after the 2002 Bipartisan Campaign Reform Act (BCRA).

Posted by tokajid at 11:20 AM

EAC Faces Allegations of Partisanship

The Washington Post has this report.

Posted by tokajid at 11:13 AM

More on N.C. Registration Spat

The Charlotte Observer has this editorial criticizing North Carolina Auditor Les Merritt, who caused the state senate to delay voting on a same-day registration bill as noted here and here.

Posted by tokajid at 10:09 AM

"Unity08 Is a 'Little Jolt of Reality' to GOP and Democrats"

Michael Richardson offers these thoughts.

Posted by tokajid at 10:00 AM

"Election Law and the Roberts Court" Symposium Papers

The Ohio State Law Journal has now posted this page with links to the papers being published in its two-issue symposium. They include the following:

-Edward Foley, The Ohio State University, Election Law and the Roberts Court: An Introduction
-Richard Briffault, Columbia University, WRTL and Randall: The Roberts Court and the Unsettling of Campaign Finance Law
-Rick Hasen, Loyola Law School of Los Angeles, The Newer Incoherence: Competition, Social Science, and Balancing in Campaign Finance Law After Randall v. Sorrell
-Pam Karlan, Stanford University, New Beginnings and Dead Ends in the Law of Democracy
-Michael Solimine, University of Cincinnati, Institutional Process, Agenda Setting, and the Development of Election Law on the Supreme Court
-Brad Smith, Capital University, The John Roberts Salvage Company: After McConnell, a New Court Looks to Repair the Constitution
-Ellen Katz, University of Michigan, Reviving the Right to Vote
-Dan Lowenstein, University of California at Los Angeles, The Meaning of Bush v. Gore
-Richard Pildes, New York University, The Decline of Legally Mandated Minority Representation
-Daniel Tokaji, The Ohio State University, Leave It to the Lower Courts: On Judicial Intervention in Election Administration
-Edward Foley, The Ohio State University, The Future of Bush v. Gore
-John Fortier, American Enterprise Institute, Foley on the Future of Bush v. Gore
-Michael Kang, Emory University, When Courts Won't Make Law: Judicial Paralysis and Partisan Gerrymandering
-Samuel Issacharoff & Jonathan Nagler, New York University, Protected from Politics: Diminishing Margins of Electoral Competition in U.S. Congressional Elections
-Guy-Uriel Charles, University of Minnesota, Race, Redistricting, and Representation

Posted by tokajid at 06:28 AM

Kim's Senate Judiciary Committee Testimony

Assistant Attorney General for Civil Rights Wan Kim testified yesterday before the Senate Judiciary Committee, which focused on allegations that career attorneys were pushed aside to (in the reported words of Brad Schlozman) "make room for some good Americans." Kim called the remarks "[a]t a very minimum ... intemperate and inopportune." The Washington Post has this report and the AP this one, which also discusses Deputy Attorney General Paul McNulty's House testimony. McNulty reportedly portrayed himself as out of the loop on the U.S. Attorney firings.

I caught part of Kim's testimony on C-SPAN last night. Although not mentioned in the stories, the DOJ's decisions to preclear Georgia's voter ID bills in 2005 and 2006 was among the subjects on which Kim was aggressively questioned. Kim said he didn't know details on the 2005 decision, made one day after a staff memo recommeded against preclearance, since it occurred before the start of his tenure. He defended the 2006 decision, after his tenure began, partly on the ground that ID would be provided free to those who didn't have it. The video doesn't appear to be on C-SPAN's video archive page, but perhaps it will appear later.

Posted by tokajid at 05:54 AM

Ontario to Vote on Citizens' Assembly Proposal

See reports here and here on the vote that Ontario, Canada will have in the fall on whether to move to a mixed-member proportional system that was proposed by the Citizens' Assembly on Election Reform. Heather Gerken has written on Canadian citizen assemblies in the Election Law Journal and with Chris Elmendorf here.

Posted by tokajid at 05:36 AM

"Nader Wins Maryland Ballot Access Case"

Ballot Access News has this report on the court of appeals decision in Nader v Maryland State Board of Elections, which "struck down a Maryland law that says signatures must be segregated by county, and that if someone from the 'wrong' county signs a petition, that signature is invalid."

Posted by tokajid at 05:32 AM

"NY Legislature Fails to Agree on Vote Machine Date"

The AP has this story on New York State's continuing struggle to comply with the Help America Vote Act.

Posted by tokajid at 05:29 AM

"Seat May Go to Flip of Coin"

A City Council election in Bath, WV is tied after the counting of provisional ballots, according to this report.

Posted by tokajid at 05:23 AM

June 21, 2007

Anticipating WRTL

Bob Bauer has these thoughts in response to Linda Greenhouse's "Precedents Begin to Fall for Roberts Court" in today's NY Times. (There's no opinion in WRTL today, by the way.)

Posted by tokajid at 07:46 AM

"N.C. Senate Approves Same-Day Voter Registration Bill"

The AP has this report on the North Carolina Senate's 33-15 vote in favor of a bill that would allow registration and immediate voting in the 2 1/2 weeks before an election at designated "one-stop" voting sites. See here for background on the dispute between the director of the state's election board and state auditor, which had previously delayed the vote.

Posted by tokajid at 07:22 AM

"Palm Beach County Threatens to Keep Touch Screen Voting Machines"

The Sun-Sentinel offers this report and the Palm Beach Post this one, on Palm Beach County commissioners reluctance to comply with a new state law outlawing paperless voting systems. The county estimates that the switch from touchscreen to optical-scan voting systems will cost it $5.9 million, on top of the $5.1 million being provided by the state.

Posted by tokajid at 07:03 AM

Gerken V: Changing the Institutional Terrain

Balkinization now has the fifth and final installment in Heather Gerken's "Setting the Agenda" series. Here's an excerpt:

... I'll close by saying a bit about the underlying assumptions behind the proposals I have described and explaining why I think they represent plausible first steps. The main assumption behind these proposals is a premise that undergirds my field and, indeed, most arguments for reform: process shapes substance..... What puzzles me is why we have not applied that lesson to the electoral reform process. As I have argued this week, the structure of the reform process determines what kind of reform gets passed. Or, in the case of the United States, the structure of the reform process means almost nothing gets passed. Rather than continuing to fight reform battles on this hostile turf, we should focus on changing the underlying terrain.
For more, see here.

Posted by tokajid at 06:55 AM

Yesterday's Hearing on the "Fair Election Now Act"

You can now find statements and video from yesterday's hearing on S. 1285 here on the Senate Rules and Administration Committee site. Nick Nyhart, who testified at the hearing, offers his thoughts on the hearing here on the Huffington Post. On the Center for Competitive Politics blog, Paul Sherman offers these thoughts, accusing Sen. Specter of "outrageous hyperbole" for comparing Buckley v. Valeo to Dred Scott.

Update: Also on the CCP blog, Brad Smith has this comment on "the disconnect between advocates of campaign finance 'reform' and the reality of the electoral process."

Posted by tokajid at 06:38 AM

Hebert on von Spakovsky

Gerry Hebert offers these thoughts on Hans von Spakovsky's testimony before the Senate Rules Committee last week. A snippet: "His answers for the most part consisted of a three prong defense: I don't recall; I was not making the decisions, just carrying out orders as the messenger; and I cannot say what my position was because that is privileged information."

Posted by tokajid at 06:30 AM

Electronic Voting Technology Workshop

The event will take place on August 6, 2007 in Boston. See here for more details, including the program schedule.

Posted by tokajid at 06:27 AM

June 20, 2007

Gerken IV: Reform by Shaming

Heather Gerken's latest post in her "Setting the Agenda" series may be found here. This one's on "Creating a Virtuous Cycle Through Shaming."

Posted by tokajid at 08:25 AM

Sens. Kennedy and Whitehouse Request "Caging" Probe

Senators Edward Kennedy (D-MA) and Sheldon Whitehouse (D-RI) have asked the Justice Department to investigate the alleged "caging" of predominantly African American voters in Jacksonville, Florida by the RNC in 2004. The AP has this report, and the text of the letter may be found here. Their inquiry is promptedly by email sent by Tim Griffin, then with the RNC and later to become interim U.S. Attorney for Arkansas. For more on caging, see Rick's earlier posts here and here.

Posted by tokajid at 08:05 AM

Missouri Supreme Court to Hear Campaign Finance Case

The AP has this report on a case to be considered by the Missouri Supreme Court Thursday, including Republican allegations that Democratic Attorney General Jay Nixon has a conflict of interest given his plans to challenge Republican Governor Matt Blunt in 2008.

Posted by tokajid at 07:53 AM

Arizona Legislature Approves Changes to Public Finance System

The AP has this report and the Arizona Republic this one, on an Arizona bill (H.B. 2690) that would reportedly make "sweeping changes" to the state's public finance system, including increased funding levels for participating candidates, looser reporting requirements, and higher contribution limits for nonparticipating candidates. The Arizona Republic reports that the bill was approved by three-fourths of both chambers, as required for amendments to the system approved by voters in 1998.

Posted by tokajid at 07:40 AM

Appeals Court Denies Jennings Petition

A Florida appellate court yesterday issued this brief opinion denying a petition for certiorari filed by Christine Jennings. Her petition sought review of a trial court order denying discovery, including access to source code of the ES&S electronic voting machines used during the November 2006 election for Florida's 13th Congressional District, which Jennings lost to Vern Buchanan by 369 votes. The three-judge panel found that Jennings failed to meet the "extraordinary burden" required on such a petition. A House task force and the GAO are still examing the matter.

For more, see stories from the AP and Brandenton Herald. Other documents from this litigation are available here on the Election Law @ Moritz site.

Posted by tokajid at 05:59 AM

Michigan Redistricting Commission Proposal

The AP has this report on a proposed state constitutional amendment that would establish a nine-person redistricting comission.

Posted by tokajid at 05:52 AM

June 19, 2007

Senate Hearing on Public Financing

The U.S. Senate's Rules and Administration Committee will hold a hearing tomorrow at 10 am ET on the proposed "Fair Elections Now Act" (S. 1285), sponsored by Senators Durbin and Spector. BNA has this report (subscription required), which describes the hearing as "unsual," in that Senators with opposing views will square off in "one of the few times that Congress has paused to reflect on the larger picture of how to finance elections." Here's a list of those slated to testify, from the committee's website:

Senator Mitch McConnell (R-Ky.)
Senator Arlen Specter (R-Pa.)
Senator Richard J. Durbin (D-Ill.)
Former Senator Warren Rudman (R-N.H.), Paul, Weiss LLP
Mr. Stephen Hoersting, Vice President, Center for Competitive Politics
Mr. Nick Nyhart, President and CEO, Public Campaign
Mr. Arnold Hiatt, Chairman, Stride Rite Foundation
Mr. Scott E. Thomas, Dickstein Shapiro LLP
This is sure to be a lively hearing. You should be able to view it live here, starting at 9:50 on Wednesday.

Posted by tokajid at 10:12 AM

A "Field of Dreams" Approach to Contested Elections

Ned Foley offers this comment on the Election Law @ Moritz site, proposing a new system for resolving election contests.

Posted by tokajid at 09:08 AM

"Reform and the Uses of Political Self-Interest"

Bob Bauer has this post, commenting on Heather Gerken's proposals to harness politican's self-interest to serve the interests of voters.

Posted by tokajid at 09:03 AM

Gerken III

Heather Gerken has posted Part III in her series on election reform scholarship, this one entitled "Providing Citizens Better Cues."

Posted by tokajid at 08:58 AM

Mixed Opinion on the Holt Bill

Gov. Bill Richardson offers this op-ed in today's The Hill, supporting the bill sponsored by Rep. Rush Holt (D-NJ) to require a "verifiable paper-ballot system." Meanwhile, Computerworld reports here on the division over the Holt Bill among electronic voting skeptics. Another presidential candidate, Rep. Dennis Kucinich (D-OH), now opposes the legislation, which he describes as "a voter reform bill rapidly losing support," and says that he plans to introduce a separate bill requiring all ballots in presidential elections to be hand-counted.

Posted by tokajid at 08:43 AM

Who Is "Mentally Fit" to Vote?

The NY Times has this report on states grappling with the question of when, if ever, people with mental impairments should be disqualified from voting. This issue was addressed at a March symposium hosted by the ABA's Commission on Law and Aging, the Borchard Foundation Center on Law and Aging, and McGeorge School of Law, entited "Facilitating Voting as People Age: Implications of Cognitive Impairment." Contributions to the symposium, including one by Ruth Colker and me on absentee voting, will be published in the McGeorge Law Review.

Posted by tokajid at 08:28 AM

Katz on "Reviving the Right to Vote"

Ellen Katz has this essay, forthcoming in the Ohio State Law Journal. From the abstract:

Losers in partisan districting battles have long challenged the resulting districting plans under seemingly unrelated legal doctrines. They have filed lawsuits alleging malapportionment, racial gerrymandering, and racial vote dilution, and they periodically prevail....

This Essay argues that the application of distinct doctrines to invalidate or diminish what are indisputably partisan gerrymanders is not necessarily problematic, and that the practice may well have salutary effects. The focus is on the Supreme Court's recent decision in LULAC v. Perry, the most recent example of the sort of judicial decision about which election law scholars fret. Unable to articulate any constitutional problem with a blatant partisan gerrymander in Texas, the Supreme Court found traction under the Voting Rights Act and held that a portion of that gerrymander diluted minority voting strength in the southwest portion of the State.... LULAC suggests that Justice Kennedy may find within the Voting Rights Act itself the standard he has been seeking for managing claims of partisan gerrymandering.

Posted by tokajid at 08:21 AM

"Campaign Finance, Iron Triangles & the Decline of American Political Discourse"

Timothy Canova of Chapman University's School of Law has this article in the Nexus Journal. From the abstract:

The Constitution protects the rights of Americans to participate in politics through assembly and membership in private interest groups. Yet the Founders recognized that interest groups and factions posed a particular danger in a democracy.... Using empirical records of campaign finance reports, this Article describes the iron triangles and captured sub-governments that plague our liberal pluralist order. The capture of federal communications policy by self-interested media companies has reduced the range and level of political discourse, and effectively privatized the public commons. A review of early American history of postal rate subsidies for newspapers provides support for present-day proposals to mandate free air time for political candidates across broadcast, cable and satellite mediums.

Posted by tokajid at 08:11 AM

More on the Von Spakovsky Nomination

McClatchy News offers this story on allegations that Hans von Spakovsky blocked lawsuits to protect minority voting rights while at DOJ. The Houston Chronicle this one focusing on DOJ's preclearance of the 2003 Texas redistricting. Meanwhile, Eliza Carney of the National Journal has this piece on the loss of credibility that Democrats in the Senate would face if they confirmed von Spakovsky to the FEC while still calling for the removal of Alberto Gonzales. She suggests that Senators ask President Bush to name an alternative nominee.

Update: TPM has this post today, with a new letter from the former DOJ professionals opposed to von Spakovsky, challenging certain aspects of his testimony -- particularly his attempt to portray himself as a middle manager rather than the de facto chief of the voting section.

Posted by tokajid at 06:23 AM

Problems with Provisionals

The election administration issue of 2004 is back in the news in Texas and Tennessee. The Beaumont Enterprise has this report on the allegedly erroneous rejection of provisional ballots in a Jefferson County, TX election. Meanwhile, in Sweetwater, TN, a liquor referendum failed by one vote, after state officials declined to open and count three provisional ballots because the voters' names weren't on the registration list. Without those three provisionals, the tally was 654-653 against a referendum to allow liquor-by-the-drink permits for businesses that primarily serve food. Supporters still have until this Friday to challenge the results in Chancery Court.

Posted by tokajid at 06:03 AM

North Carolina's Voter Fraud Dispute

The Charlotte Observer reports here on a controversy surrounding a same-day registration bill in North Carolina. The bill had already been passed by the state house and was slated to be considered by the state senate on June 6, when it was taken off the agenda at the request of State Auditor Les Merritt, a Republican. Merritt claimed to have conducted a "strategic review" that revealed "sensitive information that is relevant to the issue of voter registration" -- namely, certain irregularities on the state's voter registration list. The Director of the State Board of Elections, Democrat Gary Bartlett, subsequently rebutted Merritt's claims in this strongly worded 10-page letter, which concluded, "it is clear it would have been best for all concerned if your draft recommendations had not been issued until your staff had taken the opportunity to better understand the data it was reviewing and the laws applicable to elections." Now, the dispute has the attention of Democrats in the legislature and the liberal Facing South blog, which sees a link to the voting fraud controversy surrounding DOJ. According to this report which Rick blogged Friday, DOJ is also investigating N.C. voting rolls.

Posted by tokajid at 05:23 AM

June 18, 2007

On the Agenda...

The Supreme Court did not issue an opinion in WRTL today. The next possible day for opinions is Thursday, with more opinions issued next week. The Court is expected to issue 11 more sets of opinions (assuming it issues one set of opinions in the school integration cases) before the end of the term. I would expect the opinions in WRTL next week, most likely on the last day of the term (which could be next Wed. or Thursday).

I'm taking a few days off then going to a conference in Boston. Dan Tokaji will be guest blogging through the end of the week. if you have tips and links, please send them to Dan as well.

Posted by Rick Hasen at 08:46 AM

NAMUDNO Reply Brief Filed by Plaintiffs

You can find it here. If I get links to the other briefs, I'll update this post with those links. UPDATE Defendant-Intervenors' Opposition to Plaintiffs' Summary Judgment motion is here.

Posted by Rick Hasen at 08:40 AM

"Hasen votes for hypocrisy"

This letter to the editor appears in the Dallas Morning News, in response to this June 10 oped [corrected link] that ran in that newspaper (a shortened version of this Slate piece).

For the record, I still support a national voter identification program with biometric information, provided that the government engages in a universal voter registration program and pays for all the costs associated with the system. You can find details about my proposal here.

Posted by Rick Hasen at 08:36 AM

"Devil is in details of state redistricting reform; Four tentatively approved measures vary widely"

The LA Daily News offers this report.

Posted by Rick Hasen at 08:31 AM

"Taking On Big Donors, McCain Takes a Big Risk"

The NY Times offers this front page report. A snippet: "The twist is lost on no one: a candidate who has spent decades fighting to minimize the influence of money on politics is under extraordinary pressure to scare up tens of millions of dollars to prove he can jump-start his campaign. And after months of trying to make up with factions of the conservative coalition he has snubbed in the past, fund-raising has turned into another example of the balancing act he faces as he tries to appeal to the Republican establishment without giving up his aura as a straight-talking reformer."

Posted by Rick Hasen at 08:29 AM

"A Crack In The Edifice Of Campaign Finance Reform"

Marc Ambinder, now blogging at The Atlantic, has this post on WRTL, McCain, Romney and Bopp.

Posted by Rick Hasen at 08:26 AM

"More ads on tap with possible FEC change"

The Politico offers this report.

Posted by Rick Hasen at 08:23 AM

"The Best Judges Business Can Buy"

The NY Times offers this editorial. Bob Bauer comments.

Posted by Rick Hasen at 08:21 AM

"Setting the Agenda, Part II"

Heather Gerken's second "Here to There" post is up at Balkinization.

Posted by Rick Hasen at 08:19 AM

June 16, 2007

"Editorial: Get to the truth behind voter fraud charges"

The San Antonio Express News offers this editorial, which begins: " Is voter fraud by undocumented immigrants undermining the democratic process in the United States? Or is it a myth perpetuated by fearmongers to shut down efforts to reform immigration laws and reap partisan gains?"

Posted by Rick Hasen at 10:42 AM

June 15, 2007

Still More ACVR/Hearne Stories from the Brad Blog

See here and here.

Posted by Rick Hasen at 04:46 PM

"Report: States Seeing Changes to Election Administration as a Result of Partnerships between Election Officials and Academics"

That's the lead story in Electionline's latest newsletter. You can find the report referred to in the newsletter here.

Posted by Rick Hasen at 12:21 PM

"WRTL and Justice Kennedy, On the Way"

Bob Bauer offers these interesting thoughts, building upon my observation that Justice Kennedy could be the swing vote in WRTL (a view bolstered by this story) and Jeff Rosen's new New Republic piece on Justice Kennedy's role on the Court.

Posted by Rick Hasen at 12:06 PM

"Computer Game Shows Voters How to Win at Redistricting"

NPR offers this audio report. You can find the game itself here [corrected link].

Posted by Rick Hasen at 11:58 AM

"Setting the Agenda for Scholarship on Election Reform"

Heather Gerken has posted the first in a promised series of posts on the "here to there" problem in election law reform on Balkinization.

Posted by Rick Hasen at 11:46 AM

Davenport as an Error Correction Case, With a Note on Voter ID

Yesterday's Supreme Court opinion in Davenport arose out of no split among state courts or federal circuits. As the Washington Post notes, the law itself was unique to Washington, and hardly even a law there anymore: "Though no other states have adopted laws similar to Washington's, yesterday's ruling confirms that they have a right to do so. But its immediate practical impact in Washington state was limited by the legislature's adoption of a new law on May 10 that stipulates union political spending is not considered to come from agency fees."

So why did the Supreme Court take the case? Sometimes an opinion is so wrongheaded that the Court is willing to engage in correcting errors, lest bad rulings get picked up by other courts and get out of control. (UPDATE: A knowledgeable reader writes to add that the error correction point is especially strong given that the Court could well have dismissed this case on mootness grounds.) Error correction is the primary reason I have advocated that the Court take Crawford, the Indiana voter id case, and the argument is much more compelling than in Davenport:

    1. Error correction. Judge Posner's opinion is at best sloppy, and at worst pernicious, in its treatment of empirical evidence and how it bears on this controversy (even under a relatively low standard of review). Given Judge Posner's reputation, this opinion is likely to have ill effects far beyond the Seventh Circuit. Taking the case will also give the Court a chance to correct its own errors as to the proper balancing in voter id cases that it set forth in Purcell v. Gonzalez. (I make both of these arguments in great detail here so I won't rehash them now.) Though error correction is not a usual reason for the Court to take a case, voter id controversies are going to continue to attract great attention and controversy as they are passed by legislatures and decided by the courts. The Court can correct error and give guidance on the proper balancing in these cases.

Posted by Rick Hasen at 05:51 AM

"N.C. pressed on voter listings"

The Charlotte Observer offers this report, which begins: "State and federal officials are mounting two broad challenges to the way North Carolina maintains its voter rolls, charging widespread irregularities that include votes cast under the names of dead people." This is already causing fireworks, as with the NVRA case against Missouri.

Posted by Rick Hasen at 05:44 AM

"Wyoming Braces for Onslaught of Candidates"

Political Wire offers this report.

Posted by Rick Hasen at 05:41 AM

"Voter Fraud Conviction Upheld"

The Milwaukee Journal Sentinel offers this report.

Posted by Rick Hasen at 05:38 AM

June 14, 2007

Mike Pitts on Von Spakovsky Nomination

Mike Pitts, a professor at Indiana University School of law and former DOJ voting rights attorney, sent an email to the election law listserv opposing the nomination of Hans von Spakovksy for a full term to the FEC. The archive of the list is not working right so I can't link, but Mike has given me permission to reprint the email in its entirely. To read it, click below. (When you are done, check out Joseph Rich's reactions to yesterday's testimony by von Spakovksy.)

Unlike some of my distinguished former colleagues from the Justice Department's Voting Section, I have previously remained silent regarding the nomination of Hans von Spakovsky to the Federal Election Commission. In truth, I remain somewhat ambivalent about whether or not he should be confirmed, in part because of my view that not all of the examples of partisanship, most notably the Department's decision regarding the Texas re-redistricting, represent a clear case of partisan law enforcement. However, after reading the letter from my former colleagues and listening to today’s confirmation hearing, I think Hans should not be confirmed.

There are three reasons I question Hans' fitness to serve on the Federal Election Commission. The first reason is a lack of open-mindedness. In my experience, Hans has a particular world view that generally aligns itself with the views of the Republican Party when it comes to voting rights and election law. In my interactions with Hans, I found him to be highly ideological and someone who was typically less than willing to hear opinions and engage evidence that did not correlate with his predetermined world view. In my opinion, the hastily made Georgia voter ID preclearance decision presents a concrete instance of this unwillingness to countenance contrary ideas. On the other hand, my impression is that such closed-mindedness probably should not in-and-if-itself disqualify him to serve on the Federal Election Commission--an agency that, it seems to me (as well as apparently to Senator Bennett, who made this point during the confirmation hearing today (at :10)), has often been staffed with commissioners from both political parties who have predetermined views of the issues that come before it.

The second reason I question Hans' fitness to serve is his managerial style. In my view, Hans was needlessly antagonistic in his managerial style (an antagonism which, in my experience, stood in contrast to his affability on a more personal level). During my tenure in the Voting Section, I saw copies of a number of the e-mails he sent to my superiors, the career managers in the Voting Section. Far too often those communications were hostile and unprofessional. It's just not true as Hans said in his testimony today (at 1:48) that he was merely the "messenger" for the decisions of his superiors. If one were to subpoena the e-mails Hans sent to career lawyers it would be clear from a number of those e-mails that he was typically an advocate for a particular viewpoint, actively worked to convince his superiors (to the extent they needed to be convinced) of his viewpoint, and did this in a very hostile, adversarial, and slash-and-burn manner. When Senator Feinstein asked Hans why so many career lawyers had signed a letter opposing his nomination (at 1:47), in my opinion, a truthful answer would have been: "Because I was a real jerk to a lot of career people."

But, again, just being a jerk in the role of government manager should probably not serve as a disqualification for a position on the Federal Election Commission. I presume there have been many difficult personalities who have served on that body. What’s most damning and what represents the third and ultimately most compelling reason I question his fitness for the Federal Election Commission is the way Hans targeted those who disagreed with him. In particular, the search of e-mails in order to try to generate a complaint against an employee who reached an opposite conclusion with regard to the Georgia voter ID decision, the changing of attorney performance evaluations because he did not like the views of certain lawyers, and the involuntarily removal of managers who did not share Hans' views. At the end of the day, Hans was not just an abusive manager who had substantive disagreements with career officials--he actively tried to suppress and marginalize the voices of those with whom he disagreed.

I'll relate a personal anecdote, one that is admittedly minor in the large scheme of things, that I think is indicative of his instinct to suppress dissenting voices. I wrote several law review articles during my tenure in the Voting Section. As Hans correctly explained during the hearings today (at 1:02), the rule for career officials was that a career official could write a law review article as long as the article did not reveal any confidential information and included a disclaimer that the views expressed were not those of the Justice Department. Informally, though, there was a pre-publication review process where career managers and political appointees would review an article, ostensibly to ensure confidential information remained secret.

In February of 2005, I was about to submit for consideration by law reviews an article that discussed the potential for partisanship in the administration of Section 5 of the Voting Rights Act. The Article included the requisite disclaimer and clearly did not rely on any confidential information. I submitted it to the career managers in the Department who reviewed it and forwarded the article to several attorneys in the front office of the Civil Rights Division, including Hans.

Hans did not take kindly to the views expressed in the article. In particularly, he took offense to the discussion of partisanship in Section 5. He sent me an e-mail and we had a phone conversation during which he expressed the view that I should not be allowed to publish the portion of the article discussing partisanship. In response, I told him that the piece complied with the Department’s guidelines for writing law review articles. Ultimately, Hans backed off and, in fact, a few months later he published his own law review article under a pseudonym. Again, though, I think it provides another (albeit less compelling) instance in which Hans appeared to want to suppress a voice of someone with whom he disagreed.

At the end of the day, it's not his closed-mindedness or his ideology or his politics or his opinions on the substantive law or his managerial style that lead me to oppose the nomination. Ultimately, it's the manner in which he targeted dissenting voices.

Best,

Mike Pitts
Associate Professor of Law
Indiana University School of Law -- Indianapolis

Posted by Rick Hasen at 02:26 PM

Supreme Court Unanimously Reverses in Davenport; No Apparent Impact on WRTL Case

See here. Details to come. UPDATE 1: The opinion is here.

From my initial post on the cert grant: "I expect that the Supreme Court will answer the question presented in the negative, ruling that a state may set up a system whereby nonmembers of unions must affirmatively consent before the union can deduct money for political purposes. I was surprised by the original Washington state supreme court ruling holding that such a system violated the union's first amendment rights, in that it was not as narrowly tailored as an 'opt-out' provision (whereby monies for political purposes are automatically deducted unless the nonmember asks that they not be deducted)."

UPDATE 2: Before oral argument in Davenport, a number of reporters asked me what impact this case was likely to have on how the Court is likely to decide the WRTL case. I didn't think it would have much impact, and now that the Court has issued the opinion, I continue to believe that Davenport seems unlikely to have any impact on how the Court decides WRTL. The union in Davenport tried to use Austin and Bellotti to make an argument about its right to spend unlimited sums in ballot propositions. Speaking for 6 members of the Court (Chief Justice Roberts, and Justices Alito and Breyer would not have reached the issue), Justice Scalia found the argument irrelevant:

    The Supreme Court of Washington's description of s 760 notwithstanding, our campaign finance cases are not on point....The cases on which respondent relies deal with governmental restrictions on how a regulated entity may spend money that has come into its possession without the assistance of governmental coercion of its employees. See, e.g., Bellotti, Austin. As applied to public-sector unions, s 760 is not fairly described as a restriction on how the union can spend 'its' money; it is a condition placed upon the union's extraordinary state entitlement to acquire and spend other people's money.

(original emphasis)
Marty Lederman says Davenport's logic should mean the reaffirmation of Austin in WRTL. Regardless of what logic would appear to dictate, I see the Davenport opinion (which remember is signed by Justices at both poles on the Autin question---Scalia and Thomas at one pole and Stevens, Souter and Ginsburg at the other) as saying rather explicitly that this case has no relevance to the Austin question.

UPDATE 3: Brad Smith responds to Marty.

Posted by Rick Hasen at 07:24 AM

Thor Hearne Finally Speaks (But Says Virtually Nothing) on ACVR's Disappearance

The only journalist Thor Hearne is speaking to is St. Louis Post Dispatch Reporter Jo Mannies. She finally gets him on the record on the disappearance of ACVR. See here. Hearne's response to all the controversy:

    Hearne replied Wednesday that the answer is simple, and there's no conspiracy afoot. The marketing department at Hearne's law firm, Lathrop & Gage, is the culprit. Hearne said the firm has removed all Internet references to his ties to the center because it's no longer a client. No other reason.

    Hasen noted that other former clients remain in Hearne's online bio.

    As for the center itself, Hearne said he couldn't speak to the disappearance of its website or its own Wikipedia entry. But he did deny the critics' assertions, once featured on Wikipedia, that the center had ties to the White House.

Couldn't speak to the disappearance of the website? That strains all credulity for the person who was the public face of the organization and the brains behind the operation. A law firm partner who doesn't know who at his law firm is editing the Wikipedia entry about him?

My initial Slate column on the disappearance of ACVR is here. My follow up column on Hearne/wikipedia, Hans von Spakovsky, and Bradley Schlozman is here.

Posted by Rick Hasen at 06:26 AM

"Ga. election board says move forward with voter ID"

AP offers this report.

Posted by Rick Hasen at 06:17 AM

Justice Alito Comments on Free Speech Issues Just Before Court is To Issue WRTL Decision

The Washington Post offers Alito Calls Free-Speech Limits 'Dangerous' as Court Considers Cases.

Posted by Rick Hasen at 06:15 AM

June 13, 2007

Updated Draft of "The Untimely Death of Bush v. Gore" Now Available

You can download the revised draft here. This includes information on the EAC/U.S. Attorneys/Voter Fraud controversies, as well as updated statistics on the amount of election law litigation in 2005 and 2006. The final version of the article is scheduled to appear in the October issue of the Stanford Law Review.

Posted by Rick Hasen at 09:21 PM

"Ex-Justice Dept. lawyer can't recall his role in controversial policies"

McClatchy offers this report on the Senate Rules Committee Hearing today on the nomination of Hans von Spakovsky and 3 other commissioners to the FEC. See also this AP report, this report in The Hill, this report in The Politico, this Roll Call article ($), UPDATE: Dallas Morning News, Austin-American Statesman, Washington Times, Project Vote. Bob Bauer responds to my earlier argument against von Spakovksy's nomination. Mike Pitts had a very interesting post on the election law listserv opposing the nomination, but the list's archive function is not working right so I cannot link. I also heard Sen. Bennett refer to a letter by former Democratic EAC commissioner Ray Martinez supporting the nomination (a surprise to me), but I have not seen the letter itself yet.

Posted by Rick Hasen at 09:14 PM

"Justice Dept. Reshapes Its Civil Rights Mission"

The NY Times offers this extensive report.

Posted by Rick Hasen at 08:08 PM

This Particular Edit of the ACVR Wikipedia Page by someone at Lathrop and Gage Made Me Laugh

Here. More on ACVR, and its 990 tax status here. See also this interesting post on Fired Up Missouri.

Posted by Rick Hasen at 07:45 PM

"Implausible Deniability: The Internet Foils Fudging by Three 'Voter Fraud' Warriors"

I've just written this Chatterbox column for Slate. It asks: "What do those who believe voter fraud is a major national problem worthy of onerous voter identification laws have to hide?" The three "voter fraud" warriors in question are Thor Hearne, Hans von Spakovsky, and Bradley Schlozman.

Posted by Rick Hasen at 02:48 PM

EAC Document Dump and Response to Congressional Inquiries about Suppressed Voter Fraud Report

This is big news. The EAC is releasing internal documents, 40,000 pages in all (via a 4 cd set if you request it). What's there? "[T]he information provided also includes EAC staff communications and draft documents created internally and by contractors. These communications and documents generally would not be released under the Freedom of Information Act (FOIA). EAC has redacted personal information from these documents, including home addresses, telephone numbers, personal e-mail addresses, personal financial information, social security numbers, and tax identification numbers."

This will make for some very interesting reading and is good news and a smart move by the EAC. In addition the EAC relesed this 20 page response to Sen. Feinstein about how the EAC handled the voter fraud and voter turnout studies and this response to Rep. Lofgren. More to come on this once the documents arrive and I've had a chance to look at them.

Posted by Rick Hasen at 01:49 PM

Sen. Durbin Questions von Spakovsky About "Publius"

You can access here a live feed of the Senate hearing. I just saw Sen. Durbin question von Spakovsky about his anonymous law review article supporting voter id, written while he was at the DOJ dealing with voter id issues, and then taken down from the FEC website (more information on these issues here).

Von Spakovsky said that he did clear publishing the article with the ethics office at DOJ (it was not clear if he asked about doing so anonymously). He said he took the article down from his FEC website after press inquiries because it was "distracting" from his job as FEC commissioner.

It all started with this post of mine from March 29, 2006.

Posted by Rick Hasen at 08:16 AM

Has John Fund Toned Down His Allegations of Voter Fraud?

Here's what he's come up with in his latest column, that I linked to earlier this morning:

    One reason for such large public support is that the potential for fraud is real. Many people don't trust electronic voting machines. And in recent years Democratic candidates have leveled credible accusations of voter fraud in mayoral races in Detroit, East Chicago, Ind., and St. Louis.

    Last week, election officials in San Antonio, Texas determined that 330 people on their voter rolls weren't citizens and that up to 41 of them may have voted illegally, some repeatedly. In 2004, San Antonio was the scene of a bitter dispute in which Democratic Rep. Ciro Rodriguez charged his primary opponent with voter fraud.

    In Florida, a felon named Ben Miller was arrested last week for illegally voting in every state election over a period of 16 years. The Palm Beach Post discovered that in Florida's 2000 infamous presidential recount, 5,643 voters' names perfectly matched the names of convicted felons. They should have been disqualified but were allowed to vote anyway. "These illegal voters almost certainly influenced the down-to-the-wire presidential election," the Post reported. By contrast, only 1,100 people were incorrectly labeled as felons by election officials, the Post estimated.

Others have pointed out the problems with most of these allegations (see, for example, here and here), and note that the allegations on electronic voting and felon voting have nothing at all to do with voter id.

Posted by Rick Hasen at 06:22 AM

"Bush to Nominate Gracia Hillman To Serve Full, Four-Year Term on EAC"

BNA Money and Politics Report offers this report. ($) Perhaps the Senate Rules Committee will use the opportunity to question Hillman about the Tova Wang gag order and the ongoing investigation at the EAC over its handling of the voter fraud report it refused to release.

Posted by Rick Hasen at 05:58 AM

Battle over Thor Hearne's Wikipedia Entry Continues

Two days ago, in this post, I noted that someone had deleted information on Thor Hearne's Wikipedia page noting Hearne's affiliation with and controversy over the American Center for Voting Rights. I updated to post to note that someone from Hearne's law firm, Lathrop and Gage, made a change to that page. Since my post appeared, Wikipedia readers restored information about on ACVR on Hearne's Wikipedia page. But now, that information was deleted again by someone from ip address 65.204.234.241, which also belongs to Lathrop and Gage. Indeed, this search shows that someone at that law firm also has been editing the page on the American Center for Voting rights too.

My Slate article on Hearne and ACVR, which apparently has not been deleted by anyone at Hearne's law firm, is here.

Posted by Rick Hasen at 05:54 AM

"Hosemann backs voter ID decision"

This report from the Memphis Commercial Appeal begins: "Delbert Hosemann, a Republican candidate for secretary of state, said Tuesday in Southaven that he supports a recent federal court decision requiring Mississippi residents to have voter registration cards in primary elections."

Posted by Rick Hasen at 05:39 AM

June 12, 2007

"The Right Toner?"

Roll Call offers this report, questioning whether former FEC chair Michael Toner should not be offering himself as an expert on presidential candidate filings without mentioning that he has signed on to Fred Thompson's almost campaign: "The e-mail does not mention that Toner has signed onto Thompson's all-but-announced presidential campaign as general counsel -- and that therefore he might not be the most independent voice to dissect the second-quarter numbers."

Posted by Rick Hasen at 10:31 PM

"SF Supe Posts $135,000 Bond In Perjury, Fraud Case"

This article from CBS5 begins: "A San Francisco city supervisor under investigation by the FBI for allegedly extorting a bribe was charged by local prosecutors Tuesday with lying about where he lived so he could run for office last year, the San Francisco District Attorney's office said."

Posted by Rick Hasen at 10:26 PM

"Casting Ballot From Abroad Is No Sure Bet"

The NY Times offers this front page report.

Posted by Rick Hasen at 10:23 PM

Should Hans von Spakovsky Be Confirmed to the FEC?

In the past few weeks, I've linked to numerous blog posts and articles discussing whether Hans von Spakovsky should be confirmed to an appointment at the FEC. Critics say his performance at the DOJ (and his work in Georgia before that time) should disqualify him from a full appointment (he now has a recess appointment that will expire at the end of the congressional term). Supporters say that the DOJ experience is not germane or that his work at DOJ was not disqualifying.

There is more out there since my last set of posts: Michael Slater, Bob Bauer, Gerry Hebert, John Fund. Except for Bob Bauer, a Democratic lawyer (and friend) who has an institutional interest in not having the deal for the confirmation of FEC commissioners broken up by a dispute over von Spakovsky, it is conservatives like Brad Smith and Fund defending von Spakovsky, and liberals like the former DOJ staffers opposing him.

I haven't weighed in until now, but now I'm ready to put out a few thoughts. First, Bob Bauer is right that there's really nothing in von Spakovsky's performance on the FEC as a recess appointee that should be disqualifying for a full term confirmation. To be sure von Spakovksy has taken the Republican party line more than his predecessor, Brad Smith, on issues such as 527s. But there's nothing in his opinions that suggests he'd be anything other than a typical Republican FEC commissioner. Some might not like the structure of the FEC, but von Spakovsky so far has not shown himself to be an outlier on the commission.

So it comes down to the question whether von Spakovsky's pre-FEC performance should be disqualifying. On balance, I think it should because it shows a lack of good judgment and the potential to act unfairly to political adversaries. In particular, I'd point to the following events:

1. Von Spakovsky wrote an article while at DOJ in a law review defending the voter identification law, but he wrote it anonymously (something unprecedented so far as I know), and perhaps without permission to do so. It certainly seems unethical to write such an article and then have it relied upon as precedent (as Thor Hearne did in testimony before the EAC just last year) without revealing a potential conflict of interest in writing such an article supporting one's position in litigation.

2. Worse than anonymously writing the article, von Spakovksy covered it up. First, von Spakovsky, when he became a recess commissioner claimed authorship of the article on his FEC website. I noted that fact on the blog, and after inquiries from the Atlanta Journal Constitution and the Washington Post, von Spakovksy took the article down. Only after repeated inquiries did he have an assistant admit he was the author of the article. Both writing the article anonymously and covering it up show poor judgment.

3. Von Spakovsky's performance at the DOJ makes me worry about how fairly he would deal with political adversaries. His handling of the Georgia id preclearance issue is emblematic of the problem. From the letter from former DOJ attorneys: "After careful review of the Georgia voter ID law, career staff responsible for the review came to a near unanimous decision, consistent with the precedent established by the Department in previous reviews; that the Georgia provision would negatively affect minority voting strength. Four of the five career professionals on the review team agreed. The one who did not had almost no experience in enforcing § 5 and had been hired only weeks before the review began through the political hiring process described above. The recommendation to object to the law, detailed in a memo exceeding 50 pages was submitted on August 25, 2005. The next day, Georgia submitted corrected data on the number of individuals who had state-issued photo identification. The career review team was prevented by Mr. von Spakovsky from analyzing this data and incorporating the corrected data into their analysis. Instead, there was an unnecessary rush to judgment and the law was summarily precleared on August 26, the same day the corrected data had been submitted. Subsequent analysis of this data by a Georgia political scientist revealed that hundreds of thousands voters did not have the required voter ID, a disproportionate number of whom were poor, elderly and, most importantly for the Voting Rights Act review, minorities." Now one might take the view, as Brad Smith does, that career DOJ lawyers were overly protective of minority voting rights, and that von Spakovsky's position was a necessary corrective. But the hastiness and apparent thoughtlessness with which he handled the issue is troubling.

4. Equally troubling is the strongarming/horse-trading that von Spakovsky appeared to engage in with the EAC, as chronicled in a recent news report. This again calls into question his judgment and fairness.

I don't think this is a close case. There are many qualified individuals to serve on the FEC who don't have questions about their judgment and fairness swirling around them. There is no reason for the Senate to confirm von Spakovsky to a full term.

Posted by Rick Hasen at 10:09 PM

"Career DOJ Professionals Urge Rejection of von Spakovsky's FEC Nomination"

The Campaign Legal Center has posted this letter from Joseph Rich, Robert Kengle, Jon Greenbaum, David Becker, Bruce Adelson, and Toby Moore.

Posted by Rick Hasen at 10:05 AM

Schlozman "Clarification" on Missouri Registration Fraud Indictments Brought Just Before Election

You can find the letter here and a response from Sen. Leahy here.

The main point of the letter is to retract Schlozman's statements that he was "directed" by Public Integrity section to file the indictments, and to say now that he only "consulted" with that section, making the indictment decision himself. But equally important is this explanation, which is sure to be torn apart by former DOJ attorneys:

    My written testimony explicitly stated that the Department's informal policy of not interviewing voters during the pre-election period, which is intended to avoid actions that could conceivably have a chilling effect on voting, does not forbid the filing of charges around the time of the election. While the ACORN matter arose in October, Department policy, as confirmed by the Elections Crime Branch (the director of which authored the Department's election crimes manual) did not require a delay of this investigation and the subsequent indictments because they pertained to voter registration fraud (which examined conduct during voter registration), not fraud during an ongoing or contested election. Consequently, the Department's policy was not implicated in this manner.
(my emphasis)
So Schlozman is saying that department policy did not forbid bringing the indictments, and because the indicatments related to registration fraud, they were unlikely to chill voters from voting. Even if that's true (I'm not so sure it is on the chilling point), it misses the central issue. Missouri was involved in a hotly contested Senate race, and it is a place where vote fraud charges had been raised repeatedly by Republicans against Democrats. Bringing indictments against registrants who worked for ACORN, a group that registers poor and minority voters, was likely to (and in fact did) feed into Republican charges of Democratic voter fraud, which was likely to increase turnout among Republicans and turn independent voters away from Democrats and toward Republicans.

In one of the least believable parts of Schlozman's testimony last week, he stated he did not believe the indictments could affect the outcome of the Missouri election (and professed ignorance on ACORN's political leanings). This letter continues to perpetuate the idea that Schlozman had no idea the indictments he brought could affect the outcome of the election.

Posted by Rick Hasen at 09:27 AM

L.A. Times Political Blogs

California political blogging suffered a serious blow with the news that the LA Times' terrific Sacramento reporter Bob Salladay took an early buyout from the newspaper and has given up "Political Muscle." Political Muscle was a must-read for me, especially after the Sacramento Bee put Dan Weintraub's blogging (formerly at "California Insider") behind a subscriber wall.

The good news is that the LA Times has now begun a new national political blog that appears to have great promise. Let's see if the Times finds someone to take over Political Muscle.

Posted by Rick Hasen at 08:55 AM

Sen. Obama Comes Out Against von Spakovsky Nomination

I just received a press release by email (no link yet) announcing a letter that Sen. Obama sent to Senate Rules Committee Chair Dianne Feinstein opposing the von Spakovksy nomination to the FEC. The letter reads:

    Dear Chairwoman Feinstein and Ranking Member Bennett:

    I am writing to express my serious concerns about the nomination of Hans von Spakovsky to the Federal Election Commission (FEC).

    The FEC is an independent regulatory agency tasked with the enforcement and administration of the Federal Election Commission Act. Individuals named to the Commission should have a demonstrated record of fair administration of the law and an ability to overcome partisan biases. Unfortunately, Mr. von Spakovsky's experience both as Counsel to the Assistant Attorney General for Civil Rights in the Department of Justice and as a Republican appointee to the Fulton County Registration and Election Board in Atlanta, Georgia, do not demonstrate the evenhandedness required of an FEC Commissioner.

    As you know, Mr. von Spakovsky played an active role in not only the creation of the Georgia voter identification law, which required all voters to provide certain government-provided identification at the polls, but also played a role in the approval of that law by the Department of Justice. Reports indicate that Mr. von Spakovsky joined other senior officials in overruling the recommendations of several career staff lawyers who had reviewed the Georgia voter ID law and determined that it would unduly hinder the ability of black voters to cast their ballots. After Mr. von Spakovsky reached his decision, both federal and state courts found that the Georgia voter ID law was unconstitutional and should be enjoined. Recent reports also indicate that Mr. von Spakovsky played a role in other apparently political decisions in the Department, including overriding staff recommendations on a Texas congressional redistricting plan, as well supporting the Department of Justice’s failed attempts to purge the Missouri eligible voter rolls.

    Mr. von Spakovsky's role in supporting the Department of Justice's quixotic efforts to attack voter fraud raises significant questions about his ability to interpret and apply the law in a fair manner, as does his decision to ignore the recommendations of long-serving career attorneys on several occasions. Moreover, his role in the creation of the Georgia voter ID law should have led to his recusal from the Department of Justice's evaluation of the law. His failure to recuse himself from that case further demonstrates a lack of judgment that is not befitting an FEC Commissioner.

    Unless Mr. von Spakovsky can provide legitimate explanations for his conduct in these matters, I believe that he should not be confirmed to this important position.

    Thank you for your consideration.


    Sincerely,


    Barack Obama

    United States Senator


Posted by Rick Hasen at 08:07 AM

"Voter ID challenge tossed by state court; Issue not over: Federal suit over 2006 law revived; identification not needed in various June 19 elections."

The Atlanta Journal-Constitution offers this report.

Posted by Rick Hasen at 06:04 AM

"Judge's ruling would overhaul primary system in Mississippi"

Eric Stringfellow has written this column for the Jackson Clarion Ledger.

Posted by Rick Hasen at 06:01 AM

"Texas Secretary of State to Resign"

The Dallas Morning News offers this report.

Posted by Rick Hasen at 05:59 AM

June 11, 2007

"American Idol, Wyoming Style"

How the state GOP will pick three nominees to replace the late Sen. Thomas.

Posted by Rick Hasen at 09:21 PM

"FEC's Weintraub asks Congress about staying on past her term"

This very interesting article appears in The Hill.

Posted by Rick Hasen at 09:17 PM

"Florida Dems defy Dean on primary date"

The Hill offers this report, which begins: "Howard Dean, chairman of the Democratic National Committee (DNC), is trapped in a high-stakes game of chicken with party leaders in Florida.. They warned him yesterday not to 'disenfranchise' state voters and risk being blamed for a debacle on the scale of the 2000 recount."

Posted by Rick Hasen at 09:15 PM

"Price Seeks to Push Back Electoral College Activity"

Roll Call offers this report ($), which begins: "Rep. David Price (D-N.C.) reintroduced a measure last week that would push back the date when the Electoral College meets to give additional time for recounts in presidential elections."

Posted by Rick Hasen at 09:11 PM

"Von Spakovsky Does Not Deserve Full Term on the FEC"

Donna Brazile has written this Roll Call column ($). A snippet: "The bottom line is von Spakovsky should not be rewarded with a six-year term on the FEC for his work to suppress the vote of eligible citizens. A six-year term would allow von Spakovsky to implement and enforce election laws through the 2008 presidential election, the 2010 midterm Congressional elections and the important reapportionment battles that follow. This would give him ample opportunity to twist the interpretation of campaign finance laws to target left-leaning voter civic empowerment groups such as the Association of Community Organizations for Reform Now and the National Association for the Advancement of Colored People."

Posted by Rick Hasen at 09:09 PM

Someone Named Sam92077 Has Cleansed Thor Hearne's Wikipedia Entry to Remove References to the American Center for Voting Rights

See here. The current cleansed page is here. Sam92077 does not appear to exist either. UPDATE: While I still don't know who Sam92077 is, the latest edit to the page (from ip address 63.76.92.100) was done by someone at Hearne's law firm.

Posted by Rick Hasen at 08:54 PM

"Voting Rights Act Reauthorization of 2006: Perspectives on Democracy, Participation, and Power"

This new book, edited by Ana Henderson, has been published by The Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity, UC Berkeley, School of Law. The link to the book allows you to download each chapter, and provides ordering information for hard copies of the book.

Posted by Rick Hasen at 10:31 AM

More Bauer and Hebert on von Spakovksy Nomination to FEC

It started with Gerry Hebert's letter to the Senate Rules Committee on FEC nominee Hans von Spakovsky. It was followed by this Bob Bauer blog post.

Now see Hopes for the Rules Committee Hearing (on the FEC) this Week by Bob Bauer and The Bad FEC Commissioner by Gerry Hebert. UPDATE: Brad Smith comments on Gerry Hebert's latest post.

Posted by Rick Hasen at 08:37 AM

Georgia Supreme Court Reverses Lower Court Ruling Striking Down Voter ID Law on Standing Grounds; Does Not Reach Merits

The opinion in Purdue v. Lake is here. An AP story is here.

Posted by Rick Hasen at 08:34 AM

No Supreme Court Ruling in WRTL Today

See here. I believe the next opportunity is 6/18. UPDATE: According to Marty Lederman, beginning this week the Court will be issuing opinions on Thursdays as well, so the next opportunity for a ruling in WRTL is 6/14. I'm guessing, however, that this opinion (because it raises difficult issues and because it was argued on the last argument date of the year) won't be issued until the Court's last week (likely the week of 6/25).

Posted by Rick Hasen at 07:31 AM

"Mississippi: Dems win on closed primary"

Ed Still's Votelaw has this report, which includes a link to the district court's opinion.

Posted by Rick Hasen at 06:03 AM

"DOJ controversy invades FEC"

The Politico offers this report.

Posted by Rick Hasen at 06:01 AM

"House Study of Florida Race May Take Months"

Roll Call offers this report ($), which begins: "The Government Accountability Office last week told a special House elections task force that it may take months to determine what allegedly caused thousands of votes to disappear in a Florida House election in November, likely dimming the prospects that the sun will set in the still-disputed contest before late 2007 or beyond. GAO officials on Thursday met in private with the special House Administration elections panel, multiple sources confirmed, to discuss the status of the agency's investigation into the cause of 18,000 possible 'undervotes' in the House contest between now-Rep. Vern Buchanan (R) and bank executive Christine Jennings (D)."

Posted by Rick Hasen at 05:58 AM

"Brooklyn's Lessons"

The NY Times offers this editorial on judicial selection in NY.

Posted by Rick Hasen at 05:54 AM

"Pseudo-Scandal Scandal; Von Spakovsky Gets a Hearing"

Edward Blum has written this NRO column.

Posted by Rick Hasen at 05:52 AM

"Appeal is a waste of federal manpower; Dubious Claims of Voter Fraud"

The Kansas City Star offers this editorial, which concludes: "The Bush administration should be encouraging Americans to exercise their right to vote, not making claims of fraud that it cannot support."

Posted by Rick Hasen at 05:49 AM

June 10, 2007

"Noncitizens likely voted in Bexar County"

AP offers this report, which begins: "Dozens of non-U.S. citizens may have voted in Bexar County elections, a county elections official reported, prompting an investigation by federal and local authorities. The names of 330 noncitizens on the voter rolls were reported by Bexar County Elections Administrator Jacque Callanen." This version of the AP article appeared in the same issue of the Dallas Morning News printing this shortened version of my Slate piece on the American Center for Voting Rights.

This prompted some readers to write me and say something along the lines of: "A-ha! The AP article shows that there is in fact voting fraud and it is not a myth." My response is that even if cases of non-citizen voting is proven, that's not the kind of fraud that's been targeted by voter id requirements at the polls championed by groups such as ACVR. A voter id law only stops voter impersonation.

That said, I've repeatedly said that the government should take over the business of registering all voters, and confirming citizenship when it does so. That would stop a great deal of the registration fraud that takes place as a result of our private system of registration that allows bounty hunters to be paid for turning in completed voter registration cards. But registration fraud does not appear to lead to many illegally cast votes.

Posted by Rick Hasen at 04:55 PM

New Election Law articles published

Guy Charles, Democracy and Distortion, 92 Cornell Law Review 601 (2007)

Jason Frasco, Note, Full Public Funding: An Effective And Legally Viable Model For Campaign Finance Reform In The States, 92 Cornell Law Review 733 (2007)

Jocelyn Friedrichs Benson, Su Voto Es Su Voz! Incorporating Voters Of Limited English Proficiency Into American Democracy, 48 Boston College Law Review 251 (2007)

Michael S. Kang, De-Rigging Elections: Direct Democracy And The Future Of Redistricting Reform, 84 Washington University Law Q. 667 (2006)

Vincent R. Johnson, Regulating Lobbyists: Law, Ethics, and Public Policy, 16 Cornell Journal of Law and Public Policy 1 (2006)

Posted by Rick Hasen at 04:47 PM

June 08, 2007

"Voter Fraud" Scandal Update

McClatchy offers Politics may have played a role in voter fraud allegations in Missouri. It begins:

    A voter fraud case brought by the interim U.S. attorney in Kansas City, Mo., just five days before last year's pivotal congressional elections was rejected by a Missouri prosecutor as being too weak and as inappropriate to pursue so close to the elections.

    Mike Sanders, a Democrat who was Jackson County's prosecutor at the time, declined to elaborate on his reasons for not taking the case, but noted that even if he had sought indictments, he would have been 'incredibly reluctant' to bring charges on the eve of balloting....

    Meanwhile ousted former U.S. Attorney David Iglesias..., said he "would have been horrified" by the timing in Missouri. Asked if he believed the indictments were political, he said: "Absolutely."


Bloomberg offers Justice Official May Revise Voter-Fraud Testimony, People Say. A snippet: "Bradley Schlozman, who as U.S. attorney in Kansas City obtained indictments charging workers for an activist group with submitting fake voter-registration forms, defended the timing of the case to the Senate Judiciary Committee this week by saying he acted 'at the direction' of the department's Public Integrity Section. The explanation, which Schlozman repeated at least nine times during the June 5 hearing, infuriated public integrity lawyers, who say it implied the section ordered him to prosecute, said two Justice Department officials. Public integrity attorneys handle sensitive cases involving politicians and judges and pride themselves on staying out of political disputes." Via TPMmuckraker.

NPR"s News and Notes offers Justice Department Under Ongoing Scrutiny, an audio report described as follows: "A former official from the Justice Department's Civil Rights Division admitted this week to boasting about hiring conservative, Republican attorneys. David Goldstein, Washington correspondent for the Kansas City Star and McClatchy newspapers, breaks the story down with Farai Chideya.

Meanwhile, Brad Smith and Bob Bauer question whether the allegations against FEC nominee von Spakovsky should disqualify him from serving on the FEC.

And check out this roundup on the U.S. attorneys issues from ePlurbusMedia.

Posted by Rick Hasen at 05:24 PM

"Hearing on FEC Pick Could Add Fuel to Debate Over Justice Dept."

The Washington Post offers this report on the controversy over Hans von Spakovksy.

Posted by Rick Hasen at 06:07 AM

"Justice Department firing squad targets Indian country"

Indian Country Today offers this editorial.

Posted by Rick Hasen at 06:04 AM

"Right to Life Ad at Heart of Campaign Case"

The Green Bay Press Gazette offers this report. See also opeds by Barbara Lyons and Mike McCabe.

Posted by Rick Hasen at 06:02 AM

Senate Hearing on Obama Deceptive Practices Act

I was not aware that this was taking place yesterday.

Posted by Rick Hasen at 05:59 AM

June 07, 2007

"Democratic lawyer challenges Hans von Spakovsky's nomination to FEC"

The Politico "Crypt" blog offers this report, which includes the entire text of Gerry Hebert's letter to the Senate Rules Committee.

Posted by Rick Hasen at 08:54 PM

"GOP may not win DeLay's old seat"

The Politico offers this report. Is it time for a Texas re-re-redistricting? Will it involve fleeing legislators or ones with hospital beds next to the Senate chambers?

Posted by Rick Hasen at 08:52 PM

"The Wyoming Governor's and the U.S. Senate's Unnoticed Options, Under the Seventeenth Amendment, for Filling the Senate Vacancy Created By Senator Thomas's Death"

Vik Amar has written this provocative Findlaw column. It begins:

    This week's unfortunate death of Republican United States Senator Craig Thomas from Wyoming raises complex, if largely unnoticed, constitutional questions.

    The consensus among the pundits is that Thomas's departure from the closely divided Senate will have no short-term effect on the partisan balance there because although the Wyoming Governor is a Democrat, state law provides that when picking a temporary replacement to serve until an election can be held in 2008, the Governor must choose from among three candidates put up by the leadership of the state GOP - the party represented by the fallen incumbent.

    This description of Wyoming law is accurate: The state elections code indeed directs that, in the event of a Senate vacancy among the Wyoming Senate contingent, the central party committee of the party represented by the prior incumbent is to submit three names of qualified persons to the Governor, who "shall" then choose one of the three to serve in the Senate until a popular election is held.

    What is dubious, however, is whether this Wyoming statutory scheme is valid under the U.S. Constitution. Perhaps, in the spirit of bipartisanship or out of a desire to respect voter wishes, a Democratic Wyoming Governor should consider, and maybe even tap, a Republican temporary replacement for Thomas. But whether the Governor can legally be forced to pick one of the three persons served up by state GOP leaders is an entirely different matter.

Much of Vik's analysis is sound. But as a matter of practical politics, I have strong doubts that Wyoming's Governor, the Supreme Court, or U.S. Senate (even one controlled by Democrats) would meddle with the Wyoming procedure.

Posted by Rick Hasen at 08:40 PM

"Felon arrested in Hobe Sound after 16 years of voting"

See this report from Florida, which begins: "A Hobe Sound man, convicted on a felony charge 25 years ago and denied the right to vote ever since, was arrested Saturday for allegedly continuing to cast his ballot in Martin County for every mid-term and presidential election from 1984 to 2000."

Posted by Rick Hasen at 07:40 AM

"Bopp at the center of U.S., Indiana campaign finance cases"

Brian Howey has written this column on Jim Bopp.

Posted by Rick Hasen at 07:37 AM

"Just what does 'No' mean?; Sides differ on interpretation of election results"

A fascinating issue in Monterey County, thanks to the latest shenanigans of the Monterey Board of Supervisors.

Posted by Rick Hasen at 07:33 AM

June 06, 2007

DOJ "Source" Comments to Brad Blog on Schlozman Testimony and Politicization of the Voting Rights Section of DOJ

See here.

Posted by Rick Hasen at 08:50 PM

"Complaints abound over enforcement of voter registration law"

McClatchy offers this report, which begins: "Representatives of three liberal-leaning groups came to the Justice Department in 2004, armed with evidence that hundreds of public-assistance agencies had illegally failed to offer voter registration to their mostly poor and minority clients. Congress passed the National Voter Registration Act, which imposed the requirement, in 1993. But after these agencies registered 2.6 million people to vote in 1995-1996, the total registered plunged to about 1 million in 2003-2004. Michael Slater, the Oregon-based deputy director of the national registration group Project Vote, said officials of the Justice Department's civil rights division showed little interest in enforcing that part of the law. Officials for the three groups, as well as former lawyers in the division, cite the inaction by the Justice Department as further evidence that politics drove the Bush administration's operation of the nation's chief law enforcement agency."

Posted by Rick Hasen at 08:48 PM

Tucker on VRA Renewal

James Thomas Tucker has written The Politics of Persuasion: Passage of the Voting Rights Act Reauthorization of 2006. This article was originally printed in the Notre Dame Journal of Legislation, 33 N.D. J.Legis. 205 (2007), and is reposted here with the permission of the author and the journal.

Posted by Rick Hasen at 02:49 PM

Video Highlights of Schlozman Hearing Testimony Yesterday

Here. It was quite a set of heated exchanges.

Posted by Rick Hasen at 12:01 PM

St. Louis Post Dispatch Interviews Thor Hearne, Notes Demise of the American Center for Voting Rights, But Apparently Doesn't Ask Him About Its Sudden Disappearance

The Post Dispatch article is here. My Slate piece on ACVR is here. The only mention of ACVR in the story: "Until a few months ago, Hearne also served as counsel and frequent spokesman for the American Center for Voting Rights, a St. Louis-based group established in 2005. The center has raised concerns about voter fraud, but its current status is unclear and it has dropped its website." The story does say that "Hearne is preparing to help defend a similar law, now in effect in Indiana, if Democratic Party leaders there succeed in persuading the U.S. Supreme Court to review the measure." If he's not doing this work for ACVR, then for whom?

UPDATE: NPR offers this audio report, "Voting Rights Group Absent Amid Charges of Fraud," a must-listen on ACVR. Peter Overby tried to get all of the principals of ACVR to comment on the group's demise, to no avail. That says a great deal about the group's lack of credibility. (The NPR story follows up on this story on the Schlozman hearing.)

Posted by Rick Hasen at 07:26 AM

John Fund on Fred Thompson's Views of Campaign Finance and McCain-Feingold

See here.

Posted by Rick Hasen at 07:19 AM

June 05, 2007

Jim Bopp and David Keating Letters to the Editor on Wash Post Editorial on McCain-Feingold

See here.

Posted by Rick Hasen at 09:26 PM

McConnell Amendment to Immigration Law to Require National Voter Identification Fails in Senate 41-52

See here.

Posted by Rick Hasen at 09:24 PM

"Official Defends Filing Voter Fraud Case"

AP offers this report on DOJ official Bradley Schlozman's testimony today. See also these very interesting posts (here, here, here, and here) on TPMmuckraker. UPDATE: The Washington Post story is here, McClatchy is here, more from the New York Times;USA Today. Meanwhile, the KC Star's political blog, Prime Buzz ($) reports (see also now here without a subscription) that the DOJ will appeal the district court ruling rejecting a DOJ lawsuit targeting Missouri for its failure to purge voter rolls under the NVRA. One of the controversies with Schlozman involves this lawsuit. Still more: Bob Bauer; LA Times; Roll Call ($).

Posted by Rick Hasen at 04:49 PM

"Money for Data: Funding the Oldest Unfunded Mandate"

Thad Hall and Dan Tokaji have written this Moritz commentary. It begins:

    Federal elections are the country's oldest unfunded mandate. The Constitution gives Congress power to make or alter rules for federal elections, but the task of running those elections has long been left to state and local governments. To this day, state and local governments still bear the costs of running federal elections, while being required to follow complicated rules laid down by the federal government. This division of labor has unfortunate consequences for both sides. State and local election officials lack the resources they need to administer elections optimally. At the same time, it is often difficult to tell where the most serious electoral problems lie, or even whether federal laws are being followed, due to the notoriously poor quality of information on how elections are actually being run.

    We propose a significant alteration to this longstanding state of affairs. The federal government should provide an ongoing stream of money to state and local governments for the conduct of federal elections. In exchange, state and local election officials would have to provide comprehensive and reliable data to the federal government on such matters as registration, turnout, voting equipment, absentee voting, provisional ballots, and disability access. Those that provide incomplete or inaccurate information would lose their federal funding. This would make it much easier to evaluate the results of federal election reform and to diagnose problems before they result in post-election meltdowns like the one Florida experienced in 2000, or near-misses like the one Ohio saw in 2004.


Posted by Rick Hasen at 04:37 PM

Is the Rutgers Study on Voter ID and Voter Turnout "Badly Flawed"?

That's what Paul Gronke hears. I hope his colleague will give more details on this assessment. I know that Jeff Milyo and Lori Minnite debated this a bit on the election law listserv last month.

Posted by Rick Hasen at 05:57 AM

"Grasping Smoke: Enforcing the Ban on Political Activity By Charities"

Lloyd Mayer has posted this draft on SSRN (forthcoming, First Amendment Law Review). Here is the abstract:

    The rule that charities are not allowed to intervene in political campaigns has now been in place for over fifty years. Despite uncertainty about the exact reasons for Congress' enactment of it, skepticism by some about its validity for both constitutional and public policy reasons, and continued confusion about its exact parameters, this rule has survived virtually unchanged for all of those years. Yet while overall noncompliance with the income tax laws has drawn significant scholarly attention, few scholars have focused on violations of this prohibition and the IRS' attempts to enforce it.

    This Article focuses on the elusive issue of how extensive is noncompliance with this prohibition and how could the IRS improve its enforcement in this area. The limited data available about the extent of noncompliance indicates that while violations involving extensive expenditures or high profile activities are relatively rare, minor and probably mostly inadvertent violations may be much more widespread than current IRS enforcement figures would indicate. Such violations should be of concern because they risk creating a culture of noncompliance, they may harm the public's trust in both the violating charities and the charitable sector as a whole, and they may have significant effects on the outcome of political campaigns because of the public's generally high regard for charities. To address these violations, the Treasury Department and the IRS should adopt three strategies. First, the IRS should reduce its reliance on third-party complaints by pro-actively looking in publicly available information for possible violations, including by reviewing websites, media reports, and state campaign finance filings. Second, the Treasury Department should adopt an approach that has generally worked in other tax contexts by clarifying the vague boundaries of the prohibition through creating safe harbors for the most common election-related activities, while retaining the current facts and circumstances approach as an anti-abuse rule. Third and finally, the IRS should continue to fully utilize the flexibility of the existing penalty regime to tailor penalties to match violations, issuing only “warning tickets” for first time, apparently unintentional violators while reserving financial penalties and revocation of tax-exempt status for repeat and intentional violators.


Posted by Rick Hasen at 05:51 AM

"Auditors worried about same-day registration"

AP offers this report from Iowa.

Posted by Rick Hasen at 05:49 AM

"Justice Department actions expected to draw congressional scrutiny"

McClatchy offers this report, which begins: " Saying it was out to combat widespread voter fraud, the Justice Department in recent years has stepped up enforcement of election laws to ease the purging of ineligible voters from state registration rolls. Since 2005, department civil rights lawyers have sued election officials in seven states - Alabama, Georgia, Indiana, Maine, Missouri, New Jersey and New York - and sent threatening letters to others, in some cases demanding copies of voter registration data. Former lawyers in the Civil Rights Division, however, said the voter fraud campaign is a partisan effort to disqualify legitimate voters, as occurred in Florida before the 2000 presidential election."

Posted by Rick Hasen at 05:47 AM

June 04, 2007

"Director's Note: Mostly quiet on the judicial front--for now"

Doug Chapin of Electionline offers these thoughts on election administration litigation, including voter id litigation.

Posted by Rick Hasen at 03:33 PM

Jean-Pierre Kinglsey, former Chief Elections Officer of Canada, Named President of IFES

What a coup for IFES. Details here.

Posted by Rick Hasen at 03:17 PM

"Assembly Republican leader introduces new redistricting plan"

The Sacramento Bee offers this report on a proposal for a randomly chosen citizen commission to do redistricting in California.

Posted by Rick Hasen at 03:00 PM

"Are America's Elections Fair and Competent?"

American University's Center for Democracy and Election Management is running this conference on June 13. See also this conference agenda and this press release.

Posted by Rick Hasen at 02:08 PM

"Justice official is said to have favored GOP loyalists; Bradley Schlozman is slated to testify Tuesday in the U.S. attorneys investigation."

The LA Times offers this report. See also this Kansas City Star report and this AP report.

Posted by Rick Hasen at 08:41 AM

"The Great Voter-Fraud Myth"

Eric Rauchway has written this New Republic Online commentary.

Posted by Rick Hasen at 08:39 AM

"Third Party To End All Parties"

Eliza Newlin Carney's latest Rules of the Game column from National Journal is about Unity '08.

Posted by Rick Hasen at 08:37 AM

"Gill gets the GOP nod in 51st"

See this story from Virginia, which begins: "After hours of deliberation about overvotes cast in the Prince William County Republican Party's convention, Faisal Gill was declared the party's nominee for the 51st House of Delegates seat, getting just eight votes more than his opponent, Julie Lucas."

Posted by Rick Hasen at 08:35 AM

Michael Toner to Serve as Fred Thompson General Counsel if Thompson Runs for President

See here.

Posted by Rick Hasen at 08:33 AM

Kennedy and Gore Campaigns Engaging in Vote Suppression?

That's what Bob Shrum says, according to Bob Bauer.

Posted by Rick Hasen at 08:31 AM

June 03, 2007

"Battle Brewing Over FEC Choice"

In this post I wrote "I would not be surprised to see some very pointed questions for Hans Von Spakovksy, during this Rules Committee hearing (click on link for webcast during time of hearing) on Commissioner van Spakovsky's, Lenhard's, Mason's, and Walther's FEC confirmation hearings." Now, this Roll Call report ($) confirms that the von Spakovsky nomination could be in very serious trouble.

Posted by Rick Hasen at 10:02 PM

June 02, 2007

"DOJ Probes Turn to Civil Rights Division; Judiciary Committee to question ex-official Schlozman while internal investigation looks at hiring practices"

Legal Times offers this report on this Senate Judiciary Committee hearing scheduled for Tuesday, which will also feature former U.S. Attorney Todd Graves, whom Schlozman temporarily replaced.

Judiciary isn't the only committee that might be probing voter fraud/DOJ politicization/US Attorney firings this week. I would not be surprised to see some very pointed questions for Hans Von Spakovksy, during this Rules Committee hearing (click on link for webcast during time of hearing) on Commissioner van Spakovsky's, Lenhard's, Mason's, and Walther's FEC confirmation hearings.

Meanwhile, the hearing on problems at the EAC before Rules (originally set for this same date) is being moved to June 27.

Posted by Rick Hasen at 08:13 AM

June 01, 2007

Ninth Circuit Upholds Spending Limits in College Student Elections

Via How Appealing comes a link to this unanimous opinion of the Ninth Circuit in Flint v. Dennison. From the conclusion:

    By creating a student election process, the University of Montana has opened a limited public forum dedicated to allow campaigning for and election to leadership positions in student government. The University's purpose in opening such a forum is to provide student candidates and student voters a certain type of educational experience. We hold that imposing an expenditure limitation on student candidates is viewpoint neutral and serves to effectuate the purpose of the ASUM elections. We therefore affirm the district court's summary judgment in favor of defendants.

Posted by Rick Hasen at 11:03 AM

"Want to understand the DOJ scandals? Just follow the voter suppression schemes"

Jack Balkin has this very interesting post on Balkinization.

Posted by Rick Hasen at 06:27 AM

More on Politics in the DOJ's Voting Rights Section

See posts here and here on EPlurbisMedia.

Posted by Rick Hasen at 06:25 AM

"FEC Reduces Kerry Campaign Repayment; Audit Findings Could Be Decreased Further"

BNA Money and Politics Report offers this report ($), which begins: "The Federal Election Commission voted May 31 to accept but modify FEC staff recommendations that Sen. John Kerry's (D-Mass.) presidential campaign should repay the U.S. Treasury more than $1 million in public funding it received for the 2004 general election campaign. The FEC commissioners reduced the staff-recommended repayment of over $1.4 million by more than $100,000. At least two of the commissioners---Democrats Robert Lenhard and Ellen Weintraub--also indicated they were sympathetic to the arguments of Kerry campaign officials and inclined to further reduce the repayment determination in future FEC proceedings." The Politico reports that Kerry's lawyer has said he will appeal the decision.

Posted by Rick Hasen at 06:22 AM