August 31, 2007

"Activist sues over loss of delegates"

AP offers this report, which begins: "A Democratic activist sued the national and state parties in federal court Thursday over the decision to strip Florida of its delegates for next year's presidential nominating convention." UPDATE: Richard Winger has posted the complaint here.

Posted by Rick Hasen at 05:47 AM

"Thompson gives back cash"

The Politico offers this report.

Posted by Rick Hasen at 05:40 AM

"Investigation into vote fraud in Benton County nets 14th arrest"

See here. Apparently the fraud involved absentee ballots, though the report does not make this clear.

Posted by Rick Hasen at 05:37 AM

August 30, 2007

"Lottocracy? Curtail the First Amendment? Why not just do away with elections?"

Pete Du Pont has written this Opinion Journal piece.

Posted by Rick Hasen at 09:32 PM

"Use of Bundlers Raises New Risks for Campaigns"

The NY Times offers this report.

Posted by Rick Hasen at 09:19 PM

"Arizona Proposition 200 Decision, Another Strike Against the NVRA and Voter Participation"

See this post on the Project Vote website.

Posted by Rick Hasen at 08:13 PM

District Court Decides FEC Can Continue to Regulate 527s Through Adjudication, Not through a Forced Rulemaking

You can find the decision in Shays v. FEC II here. See also this press release by the FEC, this release from the Center for Responsive Politics, this release from the Campaign Legal Center (see also here), this story in The Politico, and this AP story. UPDATE: Bob Bauer.

Posted by Rick Hasen at 08:07 PM

"Court reverses prisoner vote ban"

This news report begins: "IN A landmark decision supporting Australians' right to vote, the High Court has struck down a Federal Government ban on all prisoners voting at elections. A majority on the bench accepted a claim by a Victorian Aboriginal prisoner, Vickie Lee Roach, that the ban was unconstitutional. The ban on all prisoners was imposed by the Howard Government in changes to the Commonwealth Electoral Act in 2006. Previously, only prisoners serving sentences of more than three years were prevented from voting." The High Court issued this release, but the opinion is not yet released: "The court did not explain its reasoning. That is expected to come with a full judgement in the next few months. In recognition that an election is looming, it issued orders saying the ban was unconstitutional because it was contrary to requirements that Parliament be directly chosen by the people."

Posted by Rick Hasen at 07:46 PM

"Voting Rights Act decision stirs emotions"

Here is a fascinating story from the Clarke Times-Courier with the subhead: "A decision by county supervisors not to proceed with a request to bailout from under the watchful eye of the federal Voting Rights Act of 1965 is stirring passions on both sides of the issue and insinuations of political pandering." Thanks to a reader for passing this along.

Posted by Rick Hasen at 07:36 PM

Bauer on Tova Wang oped

See here.

Posted by Rick Hasen at 07:22 PM

August 29, 2007

"Lawmakers must pass redistricting ballot measure this year"

George Skelton has written this LA Times column.

Posted by Rick Hasen at 09:30 PM

"Case spotlights homeless and election law"

AP offers this interesting report.

Posted by Rick Hasen at 09:28 PM

Tova Wang Speaks!

Freed of her EAC gag order, Tova Wang has written a Washington Post oped, "A Rigged Report on U.S. Voting?" For those following the controversy, it is good to finally hear Wang's perspective on the issues. She concludes:

    Even without a smoking gun showing political motives in the handling of the draft, the results are disappointing. This is not the way an institution created to promote democracy should function. A government entity that seeks democratic progress should be transparent. It should not be in the business of suppressing information or ideas. Such an institution must be thoroughly insulated from political interference from outside operatives or other parts of the executive branch.

    We need an institution like the Election Assistance Commission to provide guidance and research information to the states, election officials, elected leaders and voters. But this agency's structure and procedures need to be seriously reexamined in light of this episode. I support a strong, well-funded EAC that can help our country find reforms to the election system that will make voting more accessible, fair and accurate. But only after it finds some reforms for itself.

Posted by Rick Hasen at 09:24 PM

U.S. District Court Upholds Arizona Voter ID Law Against Constitutional and Statutory Challenges

I have posted the court's order in Gonzalez v. State of Arizona here. This is the case on remand from the Supreme Court, then named Purcell v. Gonzalez. The Arizona Republic story is here. UPDATE: Jon Greenbaum writes: "To be clear, the court's decision does not reach plaintiffs' claims that Proposition 200 is an undue burden that violates the fundamental right to vote under the 14th Amendment and that Proposition 200 violates Section 2 of the Voting Rights Act."

Posted by Rick Hasen at 01:58 PM

"FEC To Collect $775,000 Civil Penalty From America Coming Together"

The FEC has issued this press release, which begins: "The Federal Election Commission (FEC/Commission) announced today that it has reached a settlement with America Coming Together (ACT) regarding violations of federal campaign finance laws during the 2004 Presidential election. ACT, a federal political action committee (PAC) that also has a non-federal account registered under section 527 of the Internal Revenue Code, agreed to pay $775,000 to settle charges that it used funds raised outside federal limits and source prohibitions to pay for expenses that should have been paid with funds raised within the federal contribution limits and prohibitions. This settlement represents the third largest civil penalty in an enforcement matter in the Commission's thirty-three year history. The Commission unanimously approved the conciliation agreement."

Another important aspect of the press release: "The Commission is also releasing a separate Factual and Legal Analysis addressing allegations of illegal in-kind contributions made by ACT to the DNC and John Kerry for President. The Commission investigation of these allegations uncovered no evidence of coordination between those organizations and ACT."

See also Soros-Linked Group Hit with Huge Fine in The Politico.

UPDATE: ACT has released statements that I've posted here and here. You can find here the Statement of Legal Center Executive Director J. Gerald Hebert and Democracy 21 President Fred Wertheimer on FEC Action Taken on Complaint Filed Against ACT.

Posted by Rick Hasen at 11:19 AM

Off to APSA

I leave Thursday morning for the American Political Science Association annual meeting in Chicago, where I'll be presenting this paper. Blogging may be light through the weekend.

Posted by Rick Hasen at 08:13 AM

"Law and Dis-Order: The Imploding System for Choosing the Next President"

Findlaw has published my new commentary. It begins:

    Our country's multi-layered system for nominating and choosing presidential candidates is imploding. The public financing of presidential campaigns, put in place after Watergate, is in shambles, such that no top-tier candidates are expected to participate in it for the 2008 elections. Our traditional primary season, beginning with the Iowa caucuses and the New Hampshire primary, is being threatened by a new rush to the front of the line by many states, with first Florida, and now Michigan, moving up their primaries to January. The move raises the spectacle of a Christmas caucus in Iowa and the Democratic Party refusing to seat Florida's delegates at the party's nominating convention next summer.

    Meanwhile, former Tennessee Senator Fred Thompson has been "testing the waters" of a presidential candidacy so long and so deeply that he's drawn a complaint filed at the FEC claiming he's really a presidential candidate (allowing him to get those "Law and Order" residuals before officially declaring his candidacy, an act which would force NBC to take his shows off the air under equal time rules).

    Finally, and most importantly, California Republicans are trying to game the Electoral College, by placing a measure on the June 2008 election ballot which would change California's winner-take-all method for allocating the state's electoral college votes to a system awarding votes based on the winner of the vote for president in each California congressional district--a change which, if enacted and upheld as constitutional, could well swing a close election to a Republican candidate.

    What gives? And why the implosion now? Simply put, our politics have become too sophisticated to be contained by the current laws governing our system for choosing the president. With the stakes this high, political actors would be fools not to try to game the system.

Posted by Rick Hasen at 08:10 AM

"Stumbo to investigate Jefferson County's voting machine use "

The Louisville Courier-Journal offers this report.

Posted by Rick Hasen at 08:06 AM

"G.O.P. Plans Early-Primary Penalties"

The NY Times offers this report, which begins: "The Republican National Committee plans to penalize at least five states holding early primaries, including New Hampshire and Florida, by refusing to seat at least half of their delegates at the national convention in 2008, a party official said yesterday."

Posted by Rick Hasen at 07:59 AM

"L.A. County registrar to retire; Conny McCormack says the recent decision by the secretary of state to decertify several electronic voting machines played into her decision."

The Los Angeles Times offers this report. Although I have not always agreed with Conny, I think she always put her interest in fair election administration first, and she will be missed in this position. I hope her retirement will free her to work in other ways for fair election administration.

Posted by Rick Hasen at 07:57 AM

August 28, 2007

"Federal Election Comm. says McCain eligible for matching funds"

AP offers this report, which begins: "Republican John McCain, his presidential campaign trying to climb out of dire financial straits, is eligible to receive public financing for his struggling bid, the Federal Election Commission said Tuesday."

Posted by Rick Hasen at 02:54 PM

Birnbaum Profiles Wirthheimer in WaPo

See here.

Posted by Rick Hasen at 09:35 AM

"Clerk: Voter ID law will slow elections"

See this news from Michigan.

Posted by Rick Hasen at 09:32 AM

"Benefit of the Doubt"

The NY Sun offers this editorial on the FEC's post-WRTL rulemaking.

Posted by Rick Hasen at 09:29 AM

"May the best fund-raiser win?"

Arnold Hiatt has written this Boston Globe oped.

Posted by Rick Hasen at 09:27 AM


See this Campaign Finance Institute press release about this report by Tony Corrado and Katie Varney.

Posted by Rick Hasen at 09:20 AM

"Campaign Legal Center Files Amici Brief in Support of San Francisco Contribution Limits"

See here. UPDATE: Bob Bauer comments.

Posted by Rick Hasen at 09:17 AM

"A Take and Two Re-Takes, on Three Issues in Election Law"

Bob Bauer interesting miscellany.

Posted by Rick Hasen at 09:15 AM

August 27, 2007

"Modern Machines: Patronage, Information, and Incumbency in Local Politics"

Jessica Trounstine has posted this draft on SSRN. Here is the abstract:

    For all intents and purposes political machines are a thing of the past in American cities. Yet certain characteristics of machines are familiar components of the modern political landscape -- among others a lack of transparency in governing, patronage, favors and contracts awarded in exchange for campaign contributions. While scholars have noted the persistence of these practices, there has been little exploration of the modern version of one of the most pervasive machine characteristics -- winning reelection. Is there a corollary to political machines in today's city politics? Can politicians rely on machine style strategies to increase the probability that they will maintain power? In this paper I use case study and quantitative analysis to investigate the factors that increase the local incumbency advantage. I find that even controlling for demographics, economic stability, and factors that increase the attractiveness of holding office incumbents are more likely to seek reelection and to win in low-information elections with large municipal workforces.

Posted by Rick Hasen at 05:23 PM

"Elections ruling snuffs out issue polling"

This report from the Tallahassee Democrat begins: "Florida elections officials have thrown a curveball onto the state's political playing field -- campaigns can't poll voters about issues. For starters, it means political campaigns pushing ballot initiatives, such as one to change Florida's property tax structure, are forbidden from surveying voters to find out how they might fair (sic) at the polls."

Posted by Rick Hasen at 05:20 PM

"Newt returns $50k to foundation"

The Politico offers this report.

Posted by Rick Hasen at 09:11 AM

"Deformed Reform: The cure for the Electoral College that is worse than what ails us."

Jamie Raskin has written this piece for Slate.

Posted by Rick Hasen at 07:28 AM

"State ban on political pay to spouses urged"

The LA Times offers this report.

Posted by Rick Hasen at 07:26 AM

"Ethics Bill Imperfect, But An Improvement"

Eliza Newlin Carney has written this Rules of the Game column for National Journal.

Posted by Rick Hasen at 07:21 AM

August 26, 2007

"Democrats Take a Tough Line on Florida Primary"

The NY Times offers this report.

Posted by Rick Hasen at 09:45 PM

"Primary jockeying puts uncertainty in election landscape"

The San Diego Union Tribune offers this report.

Posted by Rick Hasen at 09:41 PM

AEI to Have Post-Argument Conference on NAMUDNO Case

I hope this event is webcast, as I won't be able to be in DC for this important argument.

Posted by Rick Hasen at 09:19 PM

"Man Convicted of Double Voting"

The Milwaukee Journal Sentinel offers this report.

Posted by Rick Hasen at 09:16 PM

"FEC Issues Notice of Proposed Rulemaking on Electioneering Communications"

The FEC issued this news release, which begins: "The Federal Election Commission (FEC/Commission) today approved a Notice of Proposed Rulemaking (NPRM) to implement the Supreme Court decision in Wisconsin Right to Life v. FEC (WRTL). The Court ruled that the specific ads in question were not the "functional equivalent of express advocacy" because they were "susceptible of a reasonable interpretation other than as an appeal to vote for or against a clearly identified Federal candidate." Therefore, the Court determined, the ads in question were entitled to an exemption from the restriction on the use of corporate or union funds for electioneering communications." The notice itself is here.

AP offers this report and Bob Bauer offers some first thoughts. (Update: See also here.) I have given this case some detailed consideration in this draft law review article and I hope to weigh in on the FEC notice some time before the comment period expires.

Posted by Rick Hasen at 09:12 PM

"Blogger Bites Candidate"

Allison Hayward offers these thoughts on the complaint filed with the FEC against Fred Thompson.

Posted by Rick Hasen at 08:59 PM

"Senior DoJ Official Resigns from Civil Rights Post"

TPMmuckraker offers this post on the resignation of Wan Kim. See also Spawn of Schlozman: DOJ Rewrites the Book on Voting Rights at the CLCBlog.

Posted by Rick Hasen at 08:48 PM

Updated Election Law Teacher Database Now Available

You can download the Excel spreadsheet here.

Posted by Rick Hasen at 08:45 PM

"Project Vote and Demos Notify Missouri Department of Social Services of Voting Rights Violations"

See this press release.

Posted by Rick Hasen at 08:41 PM

Interesting Order in NAMUDNO Case Involving Nate Persily's Forthcoming VRA Article

See here.

Posted by Rick Hasen at 08:31 PM

"Senator Feinstein Calls for Abolishing the Electoral College And Establishing Direct Popular Election of the President"

The following press release arrived via email (and does not yet appear to be on the Senator's website):

    U.S. Senator Dianne Feinstein (D-Calif.) today announced that she will introduce a resolution to abolish the Electoral College and provide for the direct popular vote of the President. Senator Feinstein's announcement comes against the backdrop of a bid in California to qualify a ballot initiative that would skew the outcome of Presidential elections.....

The Senator also released a press release, "Senator Feinstein Co-Sponsors Bill To Reform The Presidential Primary Process by Creating A Rotating Regional Primary System, Will hold September hearing at Senate Rules and Administration Committee."

Posted by Rick Hasen at 08:29 PM

"Early primaries may add more fundraising"

AP offers this report.

Posted by Rick Hasen at 07:52 PM

August 22, 2007

Light Blogging Through the Weekend

I'm off for a short trip Thursday, and not sure about internet access. Regular blogging will resume Monday.

Posted by Rick Hasen at 09:57 AM

"Translating a Ruling Into New Limits for Issue Ads"

The Washington Post offers this report, which begins: "In June, Chief Justice John G. Roberts Jr. and a bare majority of his colleagues blew up a key provision of the campaign finance overhaul that Congress passed in 2002. Now the Federal Election Commission has begun to piece together the fragments that remain to answer this question: What can issue-oriented political ads that are paid for with corporate or union cash say before they become a clear appeal to vote for or against a presidential or congressional candidate?"

The article discusses a debate I've had with Bob Bauer on the meaning of the plurality opinion of the Supreme Court in FEC v. Wisconsin Right to Life. I've set out my position in this draft article. Bob Bauer commented on the article in posts here and here (the now infamous "Call Rick Hasen" post).

Posted by Rick Hasen at 09:54 AM

"Democrats' Purity Primary"

Ruth Marcus has this Washington Post column, which begins: "Every campaign has moments when candidates substitute political preening for substance. Such an episode is unfolding now in the Democratic field, and it involves that perennial pinata, the Washington lobbyist."

Posted by Rick Hasen at 09:48 AM

New Tenth Circuit Case on MCFL Exemption and Buckley "Major Purpose" Test

You can find the opinion in Colorado Right to Life Commitee, Inc. v. Coffman here. See also this AP report. Links via How Appealing.

Posted by Rick Hasen at 09:45 AM

"Secretary of State threatens e-voting machine distributor; Election Systems & Software may face fines, ban for selling uncertified equipment to five counties"

The Oakland Tribune offers this report.

Posted by Rick Hasen at 09:38 AM

"Newt group reaps money campaigns can't"

The Politico offers this report.

Posted by Rick Hasen at 09:36 AM

"Stacking the Electoral Deck"

The NY Times offers this editorial, which begins: "The Electoral College should be abolished, but there is a right way to do it and a wrong way. A prominent Republican lawyer in California is doing it the wrong way, promoting a sneaky initiative that, in the name of Electoral College reform, would rig elections in a way that would make it difficult for a Democrat to be elected president, no matter how the popular vote comes out. If the initiative passes, it would do serious damage to American democracy." Meanwhile, the LA Times offers California Democrats push popular vote measure, which begins: "Democrats on Tuesday proposed putting on a 2008 ballot an initiative aimed at having California join the movement to elect presidents by popular vote. The initiative, if successful, also would head off a Republican effort to get some of California's electoral votes."

Posted by Rick Hasen at 09:29 AM

"State election officials steer neutral in 2008" offers this report, which begins: " At least a dozen states are determined to avoid one of the political minefields exposed by the cliffhanger 2000 presidential race. Whether by law or choice, state officials who oversee local and national elections in these states are declining to serve on political campaign committees or publicly endorse candidates to assure the public that elections referees don't have a stake in the outcome."

Posted by Rick Hasen at 09:27 AM

August 21, 2007

On Law Review Submissions

Having just done the research to send out my piece on FEC v. Wisconsin Right to Life to law reviews, I wish I would have had the benefit of this post on the complex world of law review submissions by Dan Solove. But now that I've sent it out, I had a good laugh reading his follow up post on law review submission policies.

Posted by Rick Hasen at 09:18 PM

"Voter ID goes back to court"

The Fulton County Daily Report offers this report, which begins: "THREE TIMES in the past two years, Judge Harold L. Murphy of U.S. District Court in Rome has issued injunctions barring enforcement of Georgia's voter identification law. That record could make lawyers for the state government a little wary today as they begin a trial in which Murphy will decide whether the law requiring voters to present photo ID at the polls is constitutional."

Posted by Rick Hasen at 03:54 PM

"PAC Man: Post Attack Prompts Fundraising Freeze"

This piece (responding to this Washington Post article) includes a defense of controversial PAC practices by Linda Chavez.

Posted by Rick Hasen at 02:50 PM

Interesting New 11th Circuit Case on Intervenor Standing in Voting Rights Cases

You can find the opinion, part of the long Chilton County, Alabama voting rights case, here. The Supreme Court's Lance v. Coffman case proves crucial. More from Ed Still.

Posted by Rick Hasen at 02:45 PM

"Bush Now Expected to Sign Reform Bill When Congress Sends It After Labor Day"

BNA Money and Politics Report offers this report ($).

Posted by Rick Hasen at 09:44 AM

"Field Poll shows Californians lean toward dividing electoral votes"

See this SF Chronicle report. The interesting poll results are themselves posted here. I'll go out on a limb and predict that this measure, if it qualifies, will be defeated at the polls if, as I expect, Democrats mount a major television campaign against it.

Posted by Rick Hasen at 09:39 AM

"Board: rhymes with bored; Elections panel's excitement is all gone (with the wind)"

Mark Naymik has this column in the Cleveland Plain Dealer.

Posted by Rick Hasen at 09:29 AM

August 20, 2007

"Blogger files FEC complaint against Thompson"

The Hill offers this report. For the complaint, from the complainant, see here. UPDATE: Bob Bauer comments.

Posted by Rick Hasen at 08:45 PM

"Schlozman Leaves Justice Department"

TPMmuckraker has the scoop.

Posted by Rick Hasen at 02:53 PM

"Lobbying Reform Bills Side by Side Comparison Chart as of August 20, 2007"

More useful information about the new lobbying bill.

Posted by Rick Hasen at 02:51 PM

"In defense of 55 electoral votes"

The SF Chronicle offers this editorial.

Posted by Rick Hasen at 01:18 PM

Best Wishes for a Full Recovery to Marcia Oddi

author of the excellent Indiana Law Blog.

Posted by Rick Hasen at 09:36 AM

Fascinating Legislation Issue in Controversy over $10 Million Earmark

This NY Times report focuses on what is interesting news to many readers: a local government turning down federal money. "It is not often that a local government tries to turn down $10 million in federal construction money. But then it is not every day that an Alaska congressman surprises a Florida community with the gift of a highway interchange that just happens to abut the property of a major political fund-raiser."

But to me, the more interesting aspect appears later in the story: "Adding to the intrigue, a researcher commissioned by Ms. Johnston said Mr. Young had added the earmark for the interchange to a transportation bill after both chambers of Congress had approved it, at a time Congressional aides were cleaning up the bill for President Bush's signature."

Kosher? TPMmuckraker reports "Experts Question Legality, Ethics Of Young's Earmark."

Hopefully, this post won't lead to another obscene gesture by Rep. Young.

Posted by Rick Hasen at 09:02 AM

"Are California counties putting voters first, or election vendors?"

The San Jose Mercury News offers this report.

Posted by Rick Hasen at 08:57 AM

"E-voting predicament: Not-so-secret ballots"

C|NET News offers this report, which begins: "Two Ohio activists have discovered that e-voting machines made by Election Systems and Software and used across the country produce time-stamped paper trails that permit the reconstruction of an election's results--including allowing voter names to be matched to their actual votes."

Posted by Rick Hasen at 08:53 AM

BNA offers Section-by-Section Analysis of New Lobbying Bill

The Introduction to the new report ($) is entitled "Love It or Hate It, Lobbying, Ethics Bill Seen as Sea Change for Influence Industry." It notes: "What follows is the commentary and section-by-section analysis from the Special Report by BNA's Money & Politics Report presenting the new lobbying and ethics reform legislation about to be sent to President Bush for his signature. Subscribers are invited to obtain, free of charge, a bound copy of BNA's Special Report on Lobbying Reform by calling Gloria Deigh at (202) 452-4262. The convenient, compact volume also includes full text of the legislation, House resolutions, and legislative history."

Posted by Rick Hasen at 08:49 AM

"Anti-Obama 527 fined for rule violations"

The Politico offers this report. My earlier coverage is here.

Posted by Rick Hasen at 08:46 AM

August 17, 2007

"Electoral College 'Reforms' Deserve A Failing Grade"

Gerry Hebert and Jesse Grauman have this post on the CLCBlog, which begins: "Over the past few weeks, members of both political parties have made efforts to tilt the scales in the 2008 elections by gaming the Electoral College. First Democrats, and then Republicans, sought to change the way electoral votes are allocated in certain states in order to give their parties an advantage. Both major parties owe it to themselves, and to the nation, to distance themselves from these shenanigans and to commit to opposing any such efforts."

Posted by Rick Hasen at 03:32 PM

Middlesex County, VA Seeks VRA Bailout

Documents here.

Posted by Rick Hasen at 03:29 PM

"Fuzzy Math: 436 mini-elections for president are worse than one"

See this interesting analysis at FairVote.

Posted by Rick Hasen at 03:27 PM

Briefing Completed on Cert. Petition in Crawford, the Indiana Voter ID Case

You can find one of the reply briefs (from the Democratic party) posted here. When I get a final copy of the other reply brief (from the ACLU), I will post it as an update to this post. [UPDATE: I have posted the ACLU's reply brief here.] You can find the original cert petition here, the defendants' opposition to cert. here, and my posts here and here on why I think the Court should take the case. I also discuss the case in this forthcoming article. (Disclosure: I have provided informal advice to the petitioners in this case.)

Posted by Rick Hasen at 10:42 AM

"Michigan to Move Up Its Primary"

NBC's great political blog, First Read, reports a January 15 date for the primary.

Posted by Rick Hasen at 10:32 AM

"Case of Spy vs. Vote Monitor in Kazakhstan? Some Clues Surface"

The NY Times offers this fascinating report.

Posted by Rick Hasen at 10:28 AM

"DOJ makes changes to submission format for VRA jurisdictions; Online submission should streamline process for department and jurisdictions"

See the lead article in this week's Electionline newsletter.

Posted by Rick Hasen at 10:25 AM

"'Sentinel voters' can help reduce election fraud"

See this Arizona Daily Star oped.

Posted by Rick Hasen at 08:51 AM

"DOJ's Selective Prosecution of the National Voter Registration Act"

See this post from Project Vote.

Posted by Rick Hasen at 08:49 AM

"Recall process needs update"

Derek Cressman offers this Monterey Herald oped.

Posted by Rick Hasen at 08:47 AM

Diebold Gets Into the Act of Wikipedia Cleansing Too

See here (see also here showing it was Diebold that changed the relevant entry). More on Wikipedia cleansing here.

Posted by Rick Hasen at 08:44 AM

"Trying to Get the Cat Back into the Bag: Internet Politics and Its Detractors"

Bob Bauer has posted these thoughts.

Posted by Rick Hasen at 08:39 AM

August 16, 2007

Dan Rather Show on Touchscreens, and a Response

You can now find the full documentary here. And Dick Smolka sends along a statement from Sharon L. Harrington, Supervisor of Elections, Lee County Florida:

    I have very serious concerns about the way in which issues and facts related to the running of elections in Lee County, FL are distorted and misrepresented in the HDNet "Dan Rather Reports" piece that will begin to air this afternoon. Over a period of several months, Lee County personnel cooperated with HDNet to answer questions and -- in a factually accurate way --explain our experience with the iVotronic Touch Screen Voting System. From promotional spots I have seen, I can say with certainty that our position is not accurately conveyed in the story. I am deeply disheartened and dismayed about what I see as a direct attempt through this piece to undermine the democratic process in Lee County, the state of Florida, and the rest of the country.

    As we explained to HDNet, in 2003, Lee County did experience issues related to the sensitivity of the touch screens on our iVotronic units. However, that issue was rectified fully and immediately when ES&S, without question or pause, replaced all of the screens at no cost to Lee County. Since that time, we have not experienced similar issues. Further, through our continuous testing and maintenance of our voting equipment, we regularly confirm that the system is functioning well. In fact, prior to each and every election Lee County publicly tests every single iVotronic voting unit to demonstrate to our voters the accuracy and reliability of the system and that they can and should have confidence that every vote cast will be counted.

    I flat-out reject any suggestion that our touch screen system is not reliable.

    Incredibly, in an effort to visually depict the issues we experienced in 2003, HDNet staff requested that our personnel deliberately uncalibrate a touch screen voting unit, completely altering the way in which it would function in a real-world scenario. Again, in the promotional spots I have seen, it leaves the suggestion that these issues are still relevant, today. This is not only a gross manipulation of the facts, but a manipulation of my staff, as well.

    Lee County has been and continues to be in full support of our electronic voting system and our vendor. This position was relayed extensively to HDNet throughout the entire interview process.

    Sharon L. Harrington
    Lee County
    Supervisor of Elections

Posted by Rick Hasen at 08:49 AM

"EAC Issues Voting System Certification Guide"

This media advisory begins: "The United States Election Assistance Commission (EAC) has issued the Quick Start Management Guide for Voting System Certification, which covers the process at the federal, state, and local levels. The guide is available at, and it is being distributed to election officials throughout the nation."

Posted by Rick Hasen at 08:31 AM


This interesting press release (which also links to the relevant FEC documents) states:

    Nearly three years after CREW filed a complaint, the Federal Election Commission has found that the 527 organization Empower Illinois Media Fund (EIMF) violated the Federal Election Campaign Act (FECA) by running advertisements in the 2004 Illinois Senate race aimed at urging voters to vote against Barack Obama. The FEC found that EIMF illegally failed to register as a political committee and knowingly accepted individual contributions of over $5,000. The FEC fined EIMF $3,000 and ordered it to file reports for the period of August 20, 2004 through December 31, 2006.

    This decision is legally significant because it is the first time that the FEC has determined that a 527 that operated a web site that distributed information critical of a federal candidate's record could be required to register as a political committee. In other words, this decision could be read as requiring any organization that raises funds specifically to establish and operate a web site to disseminate information critical of a federal candidate's record to register as a political committee and raise money within the prohibitions and limitations of FECA.

"Diebold says it can't sell elections unit"

AP offers this report.

Posted by Rick Hasen at 08:25 AM

A City in Maryland Enforcing Candidate Spending Limits?

See here.

Posted by Rick Hasen at 08:15 AM

"Lingering Questions: The Kanawha County table games vote raises more questions than it answers about the election process"

See this interesting story from West Virginia.

Posted by Rick Hasen at 08:13 AM

August 15, 2007

What Do Fox News and Thor Hearne Have in Common?

See here and here.

Speaking of Hearne, the former head of the American Center for Voting Rights seems to be laying low these days, hoping the stories about the ACVR demise will have passed and he can avoid being subpoenaed on any role he may have played in the firing of U.S. attorneys.

Posted by Rick Hasen at 09:09 AM

"A Campaign Undeclared, Not Invisible"

The NY Times offers this very interesting report on Fred Thompson's "test the waters" presidential campaign. A snippet: "F.E.C. regulations that limit the use of traditional media for campaignlike activity apply to the Web as well. But while regulators can easily monitor the reach and level of spending on television and other traditional forms of advertising, the same is not the case with the Internet, since users determine how much traffic a site like Mr. Thompson's gets. And experts say enforcement is practically nonexistent."

Posted by Rick Hasen at 08:13 AM

"After glitches, panel to issue report on House voting board on Sept. 30"

The Hill offers this report, which begins: "Following well-publicized snafus shortly before recess, a select bipartisan committee is looking into the voting irregularities that occurred in the House on Aug. 2. The six-member board, appointed by House leaders, plans to release an interim report by Sept. 30. Meanwhile, House Administration Committee Chairman Robert Brady (D-Pa.) is meeting with officials from the House clerk's office on Thursday to discuss a second incident-- the voting board's blackout Aug. 3, which Democratic sources say resulted from a disconnection of the board's power plug."

Posted by Rick Hasen at 08:09 AM

"State rules risk to early voting"

The Oakland Tribune offers this report, which begins: "Secretary of State Debra Bowen's decision to attach new security conditions to voting systems used in California is likely to cost Alameda County voters their ability to vote early."

Posted by Rick Hasen at 08:05 AM

"Fort Wayne Mayoral Candidate Indicted"

AP offers this report, which begins: "A grand jury on Tuesday indicted the Republican candidate for mayor on charges of campaign finance violations and perjury. Matt Kelty has been under scrutiny since soon after the May primary election over $158,000 that he had initially reported as personal loans to his campaign. He later revealed the money for the loans came from a campaign supporter and his campaign manager."

Posted by Rick Hasen at 08:01 AM

August 14, 2007

"CLC Files Amici Brief in Judicial Public Financing Case"

This post begins: "The Campaign Legal Center today filed an amici brief with the Court of Appeals for the Fourth Circuit in Duke v. Leake (No. 07-1454) on behalf of itself and nine other organizations 'concerned about the influence of money on judicial integrity, impartiality and independence.' Duke v. Leake involves a constitutional challenge to several provisions of North Carolina's judicial election public financing program, including the matching 'rescue funds' provision, reporting requirements for nonparticipating candidates and independent spenders, and a 21-day pre-election contribution restriction. The trial court dismissed the lawsuit and the plaintiffs appealed to the Fourth Circuit."

Posted by Rick Hasen at 02:25 PM

"Modesto Takes Voting Fight to Top U.S. Court; Latino Group Won State Case Against At-Large Elections"

The LA Daily Journal offers this report ($), which begins: "In a case that could affect local elections throughout California, the city of Modesto is asking the U.S. Supreme Court to invalidate a California law that gives minority groups broad legal rights to challenge the at-large election systems that dominate the state's political races. Modesto filed a petition last month asking the justices to review a state court decision that sided with Latino voters who argued that, because of racially polarized voting, the at-large system for electing the Modesto City Council diluted Latino voting power." My earlier coverage of this case is here.

Posted by Rick Hasen at 01:49 PM

"Voter registration is key to democracy"

Mary Keith has written this commentary for the Columbus Dispatch.

Posted by Rick Hasen at 01:18 PM

Creighton Law Review Call for Papers

The following announcement arrived via email:

    We are making this announcement on behalf of the Creighton Law Review. As Lead Articles Editors, we are responsible for selecting articles for the 2007-2008 editions. Every year the Creighton Law Review publishes four editions. This year, the Board of Editors decided to focus its second edition on Election Law.

    If you are interested in submitting an article on Election Law to the Creighton law Review, please let us know, and we can proceed accordingly. Additionally, if you have any questions please feel free to contact us. We look forward to hearing from you and hope to work with you in the future.


    Kevin Banville
    Toben Cocklin
    Creighton Law Review
    Lead Articles Editors

Posted by Rick Hasen at 01:06 PM

"Convention Party Favors Include Face Time"

Jeffrey Birnbaum has written this piece for the Washington Post, which begins: "Congress just completed ethics legislation designed to put distance between lawmakers and the interests that seek favors from them. But the people in charge of next summer's presidential nominating conventions are busy selling package deals that would put them closer together." He has also written Congressman, It's (Still) on Us: The Ethics Law's Many Loopholes.

Posted by Rick Hasen at 08:27 AM

APSA Law and Political Processes Study Group Panel

This year's panel on "Election Law Reform: Theory, Law, Practice" will be on August 31 at 4:15 pm. Here is the lineup:

    Chair: John S. Shockley
    Augsburg College

    The Supreme Court and Campaign Finance after Wisconsin Right to Life II
    Richard L. Hasen
    Loyola Law School

    Ballot Initiatives and the Republican Principle
    Daniel H. Lowenstein
    University of California, Los Angeles

    Comparative Election Administration
    Kenneth R. Mayer
    University of Wisconsin, Madison

    Discussant(s): Bruce E. Cain
    UV Berkeley
    Co-Discussant(s): Bradley A Smith

You can find my paper here.

Posted by Rick Hasen at 08:23 AM

"Quirk in Campaign Finance Laws Could Allow Additional $2,300 Contributions Per Donor if Presidential Caucus or Primary is Held in 2007"

See this Democracy 21 press release. Do others agree?

Posted by Rick Hasen at 08:17 AM

"The truth about election fraud"

Tom Spencer has written this Salt Lake City Tribune oped. I expect many people knowledgeable on the issue of voter fraud will have much to disagree with here.

Posted by Rick Hasen at 08:09 AM

"Ahead of the Bell: Diebold"

AP offers this business report (link via Election Updates).

Posted by Rick Hasen at 08:06 AM

August 13, 2007

"News; Florida GOPers Try To Preserve Delegate Strength"

See this interesting post by Marc Ambinder.

Posted by Rick Hasen at 06:16 PM

"The New College Try"

Following up on this report, The Center for Responsive Politics has issued this analysis, with a chart of Democratic v. Republican giving on college campuses you won't want to miss.

Posted by Rick Hasen at 03:52 PM

"Democrats to Conduct Voter Protection Survey"

Indian Country Today offers this report.

Posted by Rick Hasen at 03:41 PM

Dan Rather Reports: "The Trouble With Touchsceens"

Dan Rather Reports will be focusing on electronic voting. Via the link you can watch a preview of the program, which should be available in full on Tuesday.

Posted by Rick Hasen at 03:38 PM

"Miss. GOP joins in appeal of election law changes"

AP offers this report.

Posted by Rick Hasen at 03:29 PM

Election Law Journal 6:3 Now Available; Preview of ELJ 6:4

You can find the table of contents for ELJ 6:3 here, and it is linked below. Look for ELJ 6:4 in October, featuring Erik Herron and Lauren Prather on re-enfranchising displaced voters, using lessons from Bosnia; Derek Muller on the Compact Clause and the National Popular Vote; Joe Birkenstock previewing the Supreme Court's Washington State primary case; Chris Elmendorf previewing the Supreme Court's Lopez-Torres case; and book reviews by Joe Doherty, Linda Fowler, Elizabeth McLeay, Michael Pinto-Duchinsky, and Rick Vallely.

    ELJ 6:3 Table of Contents
    The Party Line
    Daniel H. Lowenstein, Richard L. Hasen
    Election Law Journal. 2007, 6(3): 235-235.

    Sunshine Laws and the Press: The Effect of Campaign Disclosure on News Reporting in the American States
    Raymond J. La Raja
    Election Law Journal. 2007, 6(3): 236-250.

    The Suits That Counted: The Judicialization of Presidential Elections
    Charles Anthony Smith, Christopher Shortell
    Election Law Journal. 2007, 6(3): 251-265.

    Special Book Review Issue

    The Future of the Voting Rights Act
    David T. Canon
    Election Law Journal. 2007, 6(3): 266-269.

    The Where and When of Voting
    Edward B. Foley
    Election Law Journal. 2007, 6(3): 270-277.

    Competition and Competitiveness in American Elections
    Daniel H. Lowenstein
    Election Law Journal. 2007, 6(3): 278-294.

    Sofas and Fizzy Drinks: Critiquing Election Law in the United Kingdom
    Caroline Morris
    Election Law Journal. 2007, 6(3): 295-298.

    The Nitty-Gritty of Electoral Integrity
    Graeme Orr
    Election Law Journal. 2007, 6(3): 299-304.

    The Madison Project
    Ramesh Ponnuru
    Election Law Journal. 2007, 6(3): 305-307.

    Should There Be a Tricentennial of the Constitution?
    Jack Rakove
    Election Law Journal. 2007, 6(3): 308-311.

    Software Correctness: A Divisive Issue in Voting Technology
    Roy G. Saltman
    Election Law Journal. 2007, 6(3): 312-321.

    Congressional Redistricting, Served Two Ways
    Jonathan H. Steinberg
    Election Law Journal. 2007, 6(3): 322-328.

    Recent Cases and Materials
    Sam Hirsch
    Election Law Journal. 2007, 6(3): 329-329

    Job Serebrov and Tova Wang, Voting Fraud and Voter Intimidation, [Draft] Report to the U. S. Election Assistance Commission (EAC) on Preliminary Research and Recommendations (2006)
    Tova Wang, Job Serebrov
    Election Law Journal. 2007, 6(3): 330-351.

Posted by Rick Hasen at 02:57 PM

"Candidate Nonprofits Need More Sunlight"

Eliza Newlin Carney's latest "Rules of the Game" column begins: "The costly and fast-paced 2008 presidential race has attracted legitimate scrutiny to an area that's emerging as a political danger zone: charities and nonprofits run by presidential candidates."

Posted by Rick Hasen at 07:26 AM

"Professors have a crush on Obama"

The Politico offers this report, which begins: "Barack Obama appears to be winning the faculty lounge straw poll -- his presidential campaign is cultivating academics and pacing the field in collecting cash from them."

Posted by Rick Hasen at 07:23 AM

"District Court Turns Back Challenge To Millionaires' Amendment; Appeal Likely"

BNA offers this report ($). My earlier coverage is here.

Posted by Rick Hasen at 07:20 AM

"Lawmakers seek changes in campaign finance reporting; Open-government groups oppose the efforts, saying that the bills would allow special interests to overwhelm elections."

The LA Times offers this report, which begins: "California lawmakers are proposing a trio of bills they say would update the state's campaign finance laws and better recognize free speech rights, but several open-government groups are fighting the measures, fearing they would allow special interests to overwhelm elections. Opponents say the bills would decrease public reporting of charitable contributions given at the behest of politicians and create a loophole in the regulation of funds spent by political parties, unions and other groups communicating with their members in support of candidates."

Posted by Rick Hasen at 07:15 AM

August 12, 2007

"Freer Speech: The Lower Courts Give, As the Supreme Court Taketh Away"

Election Law scholar Jamie Raskin has written this Slate commentary, which discusses, among other cases, the Porter v. Bowen vote swapping case.

Posted by Rick Hasen at 09:52 PM

"In Fundraising's Murky Corners; Candidates See Little of Millions Collected by Linda Chavez's Family"

Don't miss this Washington Post report.

Posted by Rick Hasen at 09:42 PM

"If Thompson Runs for President, Don't Look for Him in Reruns"

The NY Times offers this report.

Posted by Rick Hasen at 09:33 PM

"Yes, the Fund-Raising Records Fell, Just Not as Far"

The NY Times offers this report.

Posted by Rick Hasen at 09:30 PM

"Paper ballots necessary to preserve democracy"

Ken Karan has written this oped in the North County Times (CA).

Posted by Rick Hasen at 09:14 PM

"2004 ballots not preserved; Result of presidential vote cannot be verified"

The Cincinnati Enquirer offers this report, which begins: "Despite a federal judge's order to preserve all ballots from the 2004 presidential election - in which Ohio provided President Bush's margin of victory - boards of elections in 56 of Ohio's 88 counties lost, shredded or dumped nearly 1.6 million ballots and election records."

Posted by Rick Hasen at 09:12 PM

August 11, 2007

Voting Machine Problems and Litigation in Ames Iowa Republican Straw Poll

According to this AP report, "Announcement of the results was delayed for 90 minutes because a hand count was required on one of the 18 machines" and "Supporters of Paul had sought to block voting, arguing that vote-counting machines had fundamental weaknesses, but a federal judge refused to grant an injunction on Friday. The matter was appealed to the U.S. Court of Appeals for the 8th Circuit, which on Saturday upheld the ruling, said Matt McDermott, attorney for the Republican Party of Iowa."

More details when I know them.

Posted by Rick Hasen at 07:30 PM

"State begins education effort for voter ID law"

AP offers this report, which begins: "Georgia is launching a campaign to educate voters about a new photo ID mandate, an effort which could play a critical role in deciding whether the law passes constitutional muster with a federal judge."

Posted by Rick Hasen at 07:23 PM

"Make every vote count"

The Vallejo Times Herald offers this editorial on the Sec. Bowen decision in CA.

"States Try to Alter How Presidents Are Elected"

The NY Times offers this report.

Posted by Rick Hasen at 07:16 PM

August 10, 2007

"Minding the Ballot Box"

This letter to the editor appears today in response to my recent LA Times oped.

Posted by Rick Hasen at 02:22 PM

"EAC Issues Poll Worker Best Practices"

See this press release, linking to new EAC publications available at this link.

Posted by Rick Hasen at 11:05 AM

"Primary Season Getting Earlier; S.C. GOP's Move Could Push Votes For 2008 Into '07"

The Washington Post offers this report.

Posted by Rick Hasen at 09:46 AM

Interesting Assumption About Who Should Have the Right to Vote in this Letter to the Editor on Voter ID

In this letter to the editor, the author writes: "I went to the Brighton Secretary of State Office on Aug. 6 and, according to a very pleasant and helpful employee, the cost of a state photo ID is $10 and must be renewed every four years. Three very ordinary and common pieces of proof of identity also are required. If someone cannot afford $2.50 per year, they probably cannot afford a newspaper, radio or TV and are, therefore, unlikely to be well- informed about the election issues anyway."

Posted by Rick Hasen at 09:40 AM

"Secretary of state's act worrisome for election"

The Modesto Bee offers this editorial.

"RNC Voter 'Audit' Letter Raises Questions"

TPMmuckraker offers this report.

Posted by Rick Hasen at 09:27 AM

"The Millionaire's Complaint: Rejected"

Bob Bauer has written this post, which begins: " A millionaire candidate, Jack Davis, complained about McCain-Feingold's Millionaire’s Amendment, filing an action that was rejected yesterday by a three-judge district court. Davis alleged First Amendment and Equal Protection violations. The Court showed no interest, giving him a written opinion but not a particularly considered one. This comes as little surprise, since there are few plaintiffs with less chance of drawing a sympathetic audience than the very rich one bidding for office with fistfuls of his own money."

Posted by Rick Hasen at 09:15 AM

August 09, 2007

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

You can find the latest version of the draft posted here, and it includes recent developments, such as the recent Michigan voter id decision. The final version will appear in the October issue of the Stanford Law Review.

Posted by Rick Hasen at 08:43 PM

"Voting Officials Wary About Electronic Ballot"

NPR offers this report.

Posted by Rick Hasen at 04:22 PM

"Political consultant charged in petition forgery"

The Pittsburgh Post-Gazette offers this report, which begins: "Mark Zabierek, a political consultant and lobbyist, faces criminal charges related to the forgery of ballot petition signatures during the ill-fated 2006 re-election campaign of former state Rep. Michael Diven."

Posted by Rick Hasen at 01:39 PM

"Situating the New 527 Organizations in Interest Group Theory"

Robert Boatright has written this new article for The Forum. Here is the abstract:

    This article seeks to reconcile the activities of several of the groups organized during the 2004 election cycle under section 527 of the Internal Revenue Code with existing theories of party and interest group behavior. While 527 groups have frequently been categorized as extensions of traditional advocacy groups or party networks, I argue that existing theories do not account for the functional differentiation between these groups. This functional differentiation marks a relatively unprecedented development in American interest group politics. However, the highly partisan nature of the 2004 election and the limited appeal of these groups either to party donors or to a broad base of interest groups may indicate that such groups will not endure or play as prominent a role in 2008 as they did in 2004 even absent changes in FEC rules.

Posted by Rick Hasen at 01:35 PM

"Sending of Reform Bill to White House Delayed in Response to Possible Bush Veto"

BNA offers this report ($). A snippet: "Other sources said Democratic leaders are delaying sending the enrolled, final bill cleared by Congress to Bush in order to ensure there would be a chance to vote to override a veto, should it occur. If the measure were sent to the White House now and vetoed, it might not be returned to Congress for an override vote because lawmakers are adjourned until after Labor Day." See also Tim Noah's recent Slate piece.

Posted by Rick Hasen at 07:33 AM

"Santa Clara County considers suit over voting decision"

The San Jose Mercury News offers this report. And you can hear Sec. Bowen and others interviewed on KQED's The Forum here. (Another Forum show discussed term limits and featured, among others, Bruce Cain.)

Posted by Rick Hasen at 07:31 AM

"Republicans sue to get Democrats off Working Families line"

Fighting over fusion in New York.

Posted by Rick Hasen at 07:23 AM

August 08, 2007

"Candidates' names won't be transliterated"

The Boston Globe offers this report, which begins: "A three-judge federal panel has denied a move by the Justice Department to require that transliterated candidate names be printed on the ballot in certain Chinese-speaking precincts in Boston. In a decision filed Friday, the judges sided with Secretary of State William F. Galvin that agreements to translate ballots do not require transliteration, rendering non-Chinese names into Chinese characters. The Globe reported in June that language specialists said that with Chinese characters, Mitt Romney could be read as 'Sticky' or 'Uncooked Rice,' Fred Thompson as 'Virtue Soup,' and Thomas M. Menino could be 'Rainbow Farmer' or 'Imbecile.'"

In the district court opinion, the court notes that the question whether "bilingual" means "transliteration" is a matter of first impression, but it declines to reach the issue on grounds that it reads the parties' consent decree as not covering transliteration. A fascinating question about how to best protect the voting rights of Chinese reading voters. Thanks to a reader for passing along the Globe story.

Posted by Rick Hasen at 05:48 PM

Gersen and Berry on "The Fiscal Consequences of Voting Rules"

Jacob Gersen and Christopher Berry have put this piece on SSRN. Here is the abstract:

    There are more than 500,000 elected officials in the United States, 96 percent of whom serve in local governments. Electoral density - the number of elected officials per capita or per governmental unit - varies greatly from place to place. The most electorally dense county has more than 20 times the average number of elected officials per capita. In this paper, we offer the first systematic investigation of the link between electoral density and fiscal policy. Drawing on principal-agent theories of representation, we argue that electoral density presents a tradeoff between accountability and monitoring costs. Increasing the number of specialized elected offices promotes issue unbundling, reducing slack between citizen preferences and government policy; but the costs of monitoring a larger number of officials may offset these benefits, producing greater latitude for politicians to pursue their own goals at the expense of citizen interests. Thus, we predict diminishing returns to electoral density, suggesting a U-shaped relationship between the number of local officials and government fidelity to citizen preferences. Using a county-level dataset of all elected officials in the United States, we evaluate this theory along with competing theories from the existing literature. Empirically, we find evidence that public sector size decreases with electoral density up to a point, beyond which budgets grow as more officials are added within a community.

"The Fallout From California's Ban on Electronic Voting Machines"

Steven Rosenfeld has this article on AlterNet. Important quote from Stephen Weir of the association of CA county election officials: "I know of nobody who is planning a lawsuit." Brad Friedman comments on some quotes from Rep. Holt in this article.

Posted by Rick Hasen at 05:36 PM

Osama Bin Laden: Campaign Finance Reformer?

Check this out.

Posted by Rick Hasen at 05:06 PM

Part I of Ohio State Law Journal Symposium on Election Law and the Roberts Court Now Available

You can find pdfs of all the articles in Part I here. Putting aside my own work in the issue, I can say that this is a volume worth reading from cover to cover, with contributions from Ned Foley, Pam Karlan, Michael Solimine, Richard Briffault and Brad Smith.

I have also read many of the papers from Part II of the symposium, (drafts posted here), and they are really first-rate. Those drafts will appear in the next issue of the journal.

Posted by Rick Hasen at 02:37 PM

"When the Courts Shouldn't Take the Initiative: Section 2 of the Voting Rights Act, Initiative Petitions, and Operation King's Dream"

This interesting student note by Francesca Ambrosio appears at 105 Michigan Law Review 2011 (2007).

Posted by Rick Hasen at 12:37 PM

"Forget the States -- Let the Regions Pick the Candidates"

Bob Graham has this oped in the NY Times.

Posted by Rick Hasen at 11:21 AM

"INDEPENDENT EXPENDITURES A HIDDEN FORCE IN STATE ELECTIONS; New Reports Highlight Inadequacies in State Disclosure Laws"

The National Center for Money in State Politics has issued this press release, which begins:

    HELENA, Mont.-- Political expenditures made from outside official campaigns amounted to more than $115 million in just five states, a new study found, evidence of how powerful so-called independent expenditures are becoming in state politics. Compiling a comprehensive total of such expenditures for all 50 states is virtually impossible, a companion report notes, because of inadequate reporting requirements in most states.

    While 39 states require some form of disclosure for individuals or groups making these expenditures in state elections, only Alaska, California, Colorado, Maine and Washington disclose the information in a way that the public can easily access and use, the National Institute on Money in State Politics discovered.

    The first report, "Independent Expenditures, 2006" investigates spending on independent expenditures in the five states where data was readily obtainable, while "Indecent Disclosure" discusses problems with obtaining meaningful data on independent expenditures from the various state disclosure agencies. Taken together, the reports reveal the extensive impact of independent expenditures on the political process and the patchwork nature of disclosure laws regulating independent expenditures in the states.

Posted by Rick Hasen at 08:25 AM

Ryan Sager on Guliani's Position on McCain-Feingold

See here.

Posted by Rick Hasen at 08:20 AM

"Ruling jeopardizes early touch-screen vote"

The LA Daily News offers this very interesting report on L.A. County's position after the Bowen decertification of voting systems. See also numerous posts at Election Updates, and Depoliticize Electronic Voting, an editorial in the LA Times, which concludes: "It would be far better to have such decisions made by a nonpartisan entity whose sole purpose is to protect the voters' interests in casting votes easily and having them counted honestly." My earlier Times oped on the topic is here.

Posted by Rick Hasen at 08:14 AM

"Swapping votes on Web is ruled as free speech: Appeals court OKs site that connected Nader, Gore backers"

The SF Chronicle offers this report. You can access my earlier coverage here.

Posted by Rick Hasen at 08:04 AM

August 07, 2007

Indiana's Opposition to Cert Petition in Crawford, the Indiana Voter ID Case

You can find it here, courtesy of Richard Winger.

Posted by Rick Hasen at 11:23 AM

Kentucky Attorney General Wants California-Style Review of Electronic Voting Systems

See here. Update: the Kentucky Secretary of State replies. The reply starts off friendly enough, but later accuses the AG of "headline chasing" and ends with a statement that the AG is undermining voter confidence. (That letter may be partially in response to this press release.)

Posted by Rick Hasen at 10:04 AM

"Senator Clinton Suggests Election System in India Achieves Voter Confidence Level Sought for U.S.

With the permission of Richard Smolka, I am reprinting here an interesting article that recently ran in "Election Administration Reports."

Posted by Rick Hasen at 10:02 AM

Briefs in Washington Top-Two Primary Case Now Available

Richard Winger has posted the briefs here and here. This will be the first case the Supreme Court hears this term, on October 1.

Posted by Rick Hasen at 09:51 AM

"E-voting paranoia, or the right course?"

The LA Times has published my oped, which begins:

    Is California Secretary of State Debra Bowen an out-of-control state official whose unwarranted fear about the security of electronic voting machines caused her to make a rash decision Friday to decertify voting systems in 39 counties and send California's presidential primary into turmoil? Or is she a heroine who has saved California from the specter of "hacked" elections and whose only fault is not going far enough in barring all electronic voting machines?

    In truth, Bowen is neither the overzealous bureaucrat that county election officials have painted her as, nor is she the savior of American democracy, as some voting reform advocates have claimed. Instead, she has made a reasonable decision about how to reform the state's system for conducting elections, in light of voters' concerns about the security of electronic voting equipment and given the system of overlapping federal, state and local control of federal elections.

In today's Sacramento Bee, Dan Walters disagrees, believing Bowen's decision is "irrational." See also more news stories here, here, and here.

Posted by Rick Hasen at 09:26 AM

Can Florida Democrats Force the Florida Legislature to Reschedule the Presidential Primary for February 5?

In the high stakes game between the DNC and Florida Democrats over the scheduling of the presidential primary, it looks like the Florida Democrats have blinked, agreeing to move the presidential primary from Jan. 29 to Feb. 5. But the Florida Legislature, dominated by Republicans, may not cooperate.

Can Florida Democrats successfully sue to get the primary date changed if the Legislature fails to act? I'd be interested in hearing from others on such a suit. Alternatively, I suppose Florida Democrats could try to change their rules so that any vote on Jan. 29 would be a beauty contest, with some (privately funded) follow up decision later. But that could be a bad political move for Florida Democrats.

Posted by Rick Hasen at 09:21 AM

More on 9th Circuit Vote Swapping Decision

Following up on this post, see this AP report and posts by Eugene Volokh here and here.

Posted by Rick Hasen at 09:12 AM

"Tougher Rules Change Game for Lobbyists"

The New York Times offers this report. In somewhat related news, the Washington Post offers Fundraisers Tap Those Who Can't Say No; 'Bundlers' Look to Associates, Employees for Campaign Cash. Bob Bauer comments.

Posted by Rick Hasen at 09:07 AM

August 06, 2007

Breaking News: In Important Ruling, Ninth Circuit Decides California Vote Swapping Case from the 2000 Election

I have posted the decision in Porter v. Bowen here. The court agreed that the First Amendment barred the state of California from closing down the 2000 Nader-Gore vote trading websites. Though plaintiffs advanced a number of arguments, the court accepted the one I thought the strongest: that the exchange of political rather than personal benefits rendered the activity protected by the First Amendment, even if the vote exchanges were somehow enforceable. (Disclosure: I assisted the ACLU a bit on this case.)

Here is the relevant paragraph:

    Whatever the wisdom of using vote-swapping agreements to communicate these positions, such agreements plainly differ from conventional (and illegal) vote buying, which conveys no message other than the parties' willingness to exchange votes for money (or some other form of private profit). The Supreme Court held in Brown v. Hartlage, 456 U.S. 45, 55 (1982), that vote buying may be banned "without trenching on any right of association protected by the First Amendment." Vote swapping, however, is more akin to the candidate's pledge in Brown to take a pay cut if elected, which the Court concluded was constitutionally protected, than to unprotected vote buying. Like the candidate's pledge, vote swapping involves a "promise to confer some ultimate benefit on the voter, qua...citizen[ ] or member of the general public"--i.e., another person's agreement to vote for a particular candidate. Id. at 58-59. And unlike vote buying, vote swapping is not an "illegal exchange for private profit" since the only benefit a vote swapper can receive is a marginally higher probability that his preferred electoral outcome will come to pass. Id. at 55 (emphasis added); cf. Marc Johnandazza, The Other Election Controversy of Y2K: Core First Amendment Values and High-Tech Political Coalitions, 82 Wash. U. L.Q. 143, 221 (2004) ("There can be no...serious assertion, that anyone entered into a vote-swap arrangement for private profit or any other form of enrichment.").

    Both the websites' vote-swapping mechanisms and the communication and vote swaps that they enabled were therefore constitutionally protected. At their core, they amounted to efforts by politically engaged people to support their preferred candidates and to avoid election results that they feared would contravene the preferences of a majority of voters in closely contested states. Whether or not one agrees with these voters' tactics, such efforts, when conducted honestly and without money changing hands, are at the heart of the liberty safeguarded by the First Amendment.

Here's what I wrote about the case at the time of oral argument:

    Who says the 2000 election is over? Last Friday the Ninth Circuit heard oral argument (audio) in Porter v. McPherson (formerly Porter v. Jones and likely to be retitled Porter v. Bowen). At issue was the decision of then-Callifornia Secretary of State Bill Jones to threaten litigation to shut down websites that allowed individuals in different states to agree to "trade" votes. These sites were set up by people who wanted to make sure votes for Nader did not lead to a Bush victory in 2000. An example of the kind of exchange that the site would facilitate would be a Gore voter voting for Nader in California in exchange for a Nader voter in Florida voting for Gore. This would help give Gore Florida's electoral votes and give Nader his 5% of the popular vote to be entitled to public funding in the next presidential election.

    Plaintiffs argue that barring the facilitation of discussions between voters in different states that could lead to exchanges violates the plaintiffs' (and their users) First Amendment rights of free speech and association. (They also have an interesting statutory interpretation argument---that the exchange of political benefits is not "vaulable consideration" under the California statute---and a dormant Commerce Clause argument that I don't really understand.)

    The Ninth Circuit heard this case first in 2003 (opinion), which decided the district court erred in abstaining in the case. My earlier coverage is here. The case is now back before a new panel on the merits (Fisher, Clifton and District Court judge Martinez, sitting by designation).

    The issue is a fascinating one, about whether the unenforceable exchange of political benefits may be prohibited by the state in the name of preventing vote buying. I wrote about these issues more generally in Vote Buying 88 California Law Review 1323 (2000), and plaintiffs have relied upon my article to argue that this exchange of political benefits is not justified by the interests that justify preventing voter fraud. It also occurs to me that Dan Lowenstein's writing on why exchange of political benefits should not count as "corruption" under political bribery laws could be relevant to this question too.

    I listened to the panel's oral argument and the panel was quite engaged. It will be interesting to see how this case comes out. It is possible the state law question could even be certified to the California Supreme Court. Maybe we'll have a decision by the 2012 election. (Disclosure: I've provided some informal advice to the ACLU, representing the plaintiffs in this suit.)

Expect to see more such websites in 2008 if this ruling stands, especially if Bloomberg, Hagel, or someone else runs as a viable "Unity '08" candidate.

Posted by Rick Hasen at 11:52 AM

"Voting inquiry finds reasons to dig deeper"

The South Florida Sun Sentinel offers this report on the FL-13 controversy, which begins: "Federal investigators have found several potential shortcomings in previous state and local reviews of the disputed election results in Sarasota Count''s November election, keeping them from ruling out the prospect that the touch-screen voting machines were compromised. While the investigators from the Government Accountability Office told Congress on Friday that they do not have a 'smoking gun' to explain what went wrong, the issues they discovered have spurred the GAO to dig deeper in its inquiry, they said."

Posted by Rick Hasen at 11:08 AM

More on Secretary of State Bowen's Decisions to Decertify CA Voting Machines

Following up on this post, you can find news stories in the San Jose Mercury News, Contra Costa Times, SF Chronicle, AP, San Diego Union Tribune, Ventura County Star, Monterey Herald, Sacramento Bee, LA Times (and see this profile of Bowen), Alternet, Riverside Press Enterprise, Brad Blog, Long Beach Press Telegram.

I am scheduled to be on KPCC's Airtalk (listen here) at 10:20 am Pacific Time talking about this issue.

Posted by Rick Hasen at 09:39 AM

"A Red Play for The Golden State"

Jonathan Alter's Newsweek column discusses the same California initiative that Hendrik Hertzberg wrote about last week. See also this LA Tmes report.

Posted by Rick Hasen at 09:04 AM

Journal of Law and Politics Issues Call for Papers on WRTL

You can find the call for papers here.

Posted by Rick Hasen at 08:56 AM

August 05, 2007

Interesting Jurisprudential Issue in Supreme Court's Recent Campaign Finance Case, FEC v. WRTL

Two Justices (in this case C.J. Roberts and Justice Alito) announce the controlling test on a constitutional issue (in this case which types of broadcast ads mentioning candidates may be paid for with corporate or union treasury funds). The seven other Justices on the Court say that under the test, a certain type of ad mentioned in the earlier FEC v. McConnell case (the so-called "Jane Doe" ad) would be entitled to an exemption. The two Justices announcing the test disagree. If you are a lower court judge deciding an issue like the one involving the Jane Doe ad, do you follow the two or the seven?

I recently posted this query on the election law listserv and got some interesting responses (follow this thread) but would like to hear others' reactions as well, especially if the issue has come up in other contexts. Bob Pushaw suggested to me it may present a kind of collective choice problem that the work of Max Stearns could elucidate. I'll have to look down that road. In any case, here it the full post:

Under the WRTL principal opinion (C.J. Roberts and Justice Alito) the only ads that may not be paid for with corporate or union treasury funds are those that expressly advocate the election or defeat of candidates for office and those that are "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

Imagine that a lower court judge is asked whether the following advertisement is subject to the as-applied exemption: "Jane Doe wants to be your president, but Jane Doe's position on global warming is evil. Don't let her ruin the world." Should the lower court grant an exemption?

As I explain in my new paper on WRTL, "Beyond Incoherence: The Supreme Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, there's a strong argument to be made that under the principal opinion's "no reasonable interpretation" test, the lower court judge should grant the exemption because there is no express advocacy and the ad is subject to a reasonable interpretation (though not the best interpretation, I'd argue) that the ad is about the "issue" of global warming. But the issue is somewhat murky because the ad arguably includes "condemnatory" language. As I explain in my paper at page 30 (footnotes omitted):

    The principal opinion sought to distinguish WRTL's ads from a hypothetical Jane Doe ad mentioned in McConnell that condemned Jane Doe's position on an issue and urged voters to call Doe to tell her what they think about her position: "But [the Jane Doe] ad 'condemned Jane Doe's record on a particular issue.' WRTL's ads do not do so; they instead take a position on the filibuster issue and exhort constituents to contact Senators Feingold and Kohl to advance that position. Indeed, one would not even know from the ads whether Senator Feingold supported or opposed filibusters." The footnote build upon the principal opinion's statement that WRTL's ads are not like express advocacy because they "focus on a legislative issue, take a position on the issue, exhort the public to adopt that position, and urge the public to contact public officials on the issue." Further, they 'do not mention an election candidacy, political party or challenger[] and they do not take a position on a candidate's character, qualifications, or fitness for office."

From this language in the principal opinion, it is not clear to me that Chief Justice Roberts and Justice Alito would say that the Jane Doe ad gets the exemption. But the 7 other Justices on the Supreme Court say that under the principal opinion's test, the Jane Doe ad would be entitled to an exemption: WRTL, 127 S.Ct. at 2683 n.7 (Scalia, J., concurring in the judgment) ("While its coverage is not entirely clear, [the principal opinion's test] would apparently protect even McConnell's paradigmatic example of the functional equivalent of express advocacy--the so-called 'Jane Doe ad'"; id. at 2699 (Souter, J., dissenting) ("If it is now unconstitutional to restrict WRTL's Feingold ads, then it follows that s 203 can no longer be applied constitutionally to McConnell's Jane Doe paradigm."). Indeed, Justice Scalia adds that the principal opinion's test "at least arguably protects the most 'striking' example of a so-called sham issue ad in the McConnell record, the notorious 'Yellowtail ad,' which accused Bill Yellowtail of striking his wife and then urged listeners to call him and '"[t]ell him to support family values.'"

So what is the lower court to do? Follow what the principal opinion says about condemnatory ads or follow what the majority of the Court says the principal opinion's test means?

I dance around this issue in my current draft, but I'd like to address it head-on in the next iteration.

Posted by Rick Hasen at 12:35 PM

August 04, 2007

"At least one candidate, John Helmert, said he's worried now that the election will be fair."

Is that statement a typo?

Posted by Rick Hasen at 08:01 PM

"State decides to secure electronic voting machines; Secretary of State orders more precautions be taken against tampering, and withdraws support of the InkaVote Plus machines used in Southern California."

The LA Times offers this report. This NY Times article explains: "In a sense Ms. Bowen's decision amounts to barring the machines, then reapproving their use under strict new conditions."

The Inkavote decision is different than the others, in that it was denied approval because the materials were not submitted for approval in time. See here (and here for more information). Inkavote could still be approved for use in the LA presidential primary.

Posted by Rick Hasen at 07:56 PM

"Buy My Ballot, Please"

Dirk Olin has written this not very successful attempt at humor about vote buying on the oped page of today's NY Times.

Posted by Rick Hasen at 07:50 PM

August 03, 2007

New on the EAC website

EAC Chair Davidson's prepared testimony before the House Administration Committee (check out page 24, which puts the best face on the EAC's voter fraud/voter id research controversies)

This media advisory, "EAC Will Post and Distribute State Reports on Voting Systems" (see also the underlying policy document, moved by Commissioner Hunter)

Posted by Rick Hasen at 01:11 PM

"Appeals Court: Raid on Jefferson's Office Violated Constitution"

Roll Call offers this breaking news report, regarding this opinion in USA v. Rayburn House Office Building issued by the D.C. Circuit. The Court held that aspects of the search violated the Speech or Debate Clause. It concludes:

    Accordingly, we hold that the Congressman is entitled to the return of all legislative materials (originals and copies) that are protected by the Speech or Debate Clause seized from Rayburn House Office Building Room 2113 on May 20-21, 2006. Further, as contemplated by the warrant affidavit, see Thibault Aff. ¶¶ 137-38, the FBI agents who executed the search warrant shall continue to be barred from disclosing the contents of any privileged or "politically sensitive and non-responsive items," id. ¶ 138, and they shall not be involved in the pending prosecution or other charges arising from the investigation described in the warrant affidavit other than as regards responsiveness, id.
In her opinion concurring in the judgment, Judge Henderson concludes:
    In sum, I believe the Executive Branch's execution of a search warrant on a congressional office--with its unavoidable but minimal exposure to records of legislative acts--does not-constitute "question[ing]" within the meaning of the Speech orDebate Clause. On this reading of the Clause, Rep. Jefferson remains subject to the same criminal process that applies to his constituents. See Gravel, 408 U.S. at 626. As "[t]he laws of this country allow no place or employment as a sanctuary for crime," Williamson v. United States, 207 U.S. 425, 439 (1908) (quoting King v. Willkes, 2 Wils. 151 (1763)), I would conclude that the Speech or Debate Clause does not bar the Executive Branch's execution of a search warrant on a congressional office and, accordingly, deny Rep. Jefferson's Rule 41(g) motion.

Posted by Rick Hasen at 08:09 AM

"Congress Backs Tighter Rules on Lobbying"

The NY Times offers this report, which does not contain any new information on whether President Bush will sign the law and, if he doesn't, whether the bill would likely survive any defections in the event of an attempted veto override. The NY Sun offers McCain and Feingold in a Divorce and Bob Bauer comments on the campaign finance aspects of the bill.

Posted by Rick Hasen at 07:57 AM

August 02, 2007

"Senator Feinstein Calls Department of Justice Response to Questions about Election Crime Manual 'Inadequate'"

See this press release [corrected link].

Posted by Rick Hasen at 01:48 PM

"A Tri-Partisan Solution"

Political Insider offers this post, which begins: "Senators Lamar Alexander, Amy Klobuchar, and Joe Lieberman have introduced a bill to revamp the presidential nominating process for the 2012 election. Their proposal, which can be read in full here, mandates a rotating series of regional contests. Each of four regions - East, West, South, and Midwest - would be assigned a month between March and June during which its states could hold primaries and caucuses. The month assignments would change every presidential election cycle. During any sixteen-year period, each region would get a turn at the leadoff slot. The three senators sponsoring the legislation believe this system could counteract what they call a 'race to the front' in the current scheduling of state primaries." I'm not sure how this differs from the bill introduced by Rep. Levin back in May.

Posted by Rick Hasen at 12:06 PM

"Senate Passes Ethics Reform; Measure Moves to White House for Signature"

Roll Call offers this breaking news report ($). The vote was 83-14 (roll call vote here). The newspaper reports: "The real test came earlier in the day, when conservative Republican Senators -- who said the bill fell short on limiting earmarks-- tried to kill it on a procedural vote to end debate. Three GOP Senators-- Wayne Allard (Colo.), Sam Brownback (Kan.) and Jim Bunning (Ky.) -- voted against cloture but then voted for the bill. " I have posted the text of the bill here [NOTE: This is a corrected link. My earlier link was to the version of the bill as first introduced in the Senate. Thanks to Ken Gross for pointing this out.].

A statement from the Campaign Legal Center is here

UPDATE: The Washington Post reports "the White House said President Bush had 'serious concerns' about the measure and had not decided whether to sign it."

Posted by Rick Hasen at 12:01 PM

"Justice Department appeals Missouri voting-rights case"

The Kansas City Star offers this report.

Posted by Rick Hasen at 11:43 AM

"Hans von Spakovsky and the Last Straw"

Gerry Hebert has posted this item on the CLC Blog. It begins: "Much cyber-ink has been spilled in recent months on this blog and elsewhere regarding the many indiscretions of Hans von Spakovsky, in the context of examining his fitness for Senate confirmation as a Commissioner on the Federal Election Commission. And though von Spakovsky's track record at the Department of Justice has been the most common subject of scrutiny, we recently stumbled upon evidence of likely law-breaking by von Spakovsky as an FEC Commissioner. Yet another law seemingly ignored--and this time it’s a provision of the Federal Election Campaign Act (FECA)."

Posted by Rick Hasen at 10:09 AM

"'Rick Hasen Has Harshly Denounced the Supreme Court's Campaign Finance Jurisprudence...Call Rick Hasen, Tell Him He is Worrying Too Much'"

Here is the second installment of Bob Bauer's response to my paper on WRTL. Bob, are those words of condemnation in your headline? I think not, and for that reason I do not think I am worrying too much. I think my worrying is appropriate for the situation.

Posted by Rick Hasen at 07:21 AM

"Ups and downs of political donations"

The Globe and Mail (Canada) offers this editorial.

Posted by Rick Hasen at 07:16 AM

"3 arrested in alleged Benton Co. voter fraud scheme"

AP offers this report from Mississippi. It is not clear from the report what kind of "voter fraud" is involved here.

Posted by Rick Hasen at 07:14 AM

August 01, 2007

"The Faux Originalism of Justice Clarence Thomas"

Doug Kendall and Jim Ryan have this jurisprudence essay on Slate which discusses, among other cases, the WRTL case.

Posted by Rick Hasen at 08:40 PM

"Is Change on the Horizon in Congress?"

The AEI-Brookings Election Reform Project offers analysis of congressional election reform bills.

Posted by Rick Hasen at 08:25 PM

"New Report Finds States Not Doing Enough to Ensure Accurate Count on Electronic Voting Machines"

The Brennan Center has issued this press release about this new report.

Posted by Rick Hasen at 08:19 PM

"Handel Rehashes Voter ID Ploy"

The Atlanta Journal Constitution offers this editorial.

Posted by Rick Hasen at 08:12 PM

"Paper Trail Perspective"

John Fortier offers this column in The Hill.

Posted by Rick Hasen at 08:10 PM

"Rick Hasen on WRTL, and Very Unhappy"

Bob Bauer offers these comments on the paper I've recently posted on SSRN, Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life. Bob promises more thoughtful criticism to come.

Posted by Rick Hasen at 08:05 PM

"Court Okays Using Churches As Polling Places"

The NY Sun offers this report.

Posted by Rick Hasen at 08:00 PM

"Senate May End an Era of Cloakroom Anonymity"

The NY Times offers this report. A snippet: "Now senators are considering bringing the secret hold into the open by requiring those who use it to disclose their identity and their rationale in The Congressional Record. The proposed rule, virtually revolutionary in the staid realm of the Senate, is part of the ethics and lobbying overhaul headed for a final vote this week."

Posted by Rick Hasen at 07:54 PM

"Voting Officials Face New Rules to Bar Conflicts"

The NY Times offers this must read report A crucial snippet: "'Just because you are elected to office doesn't mean you check your constitutional right to free speech at the door," said Todd Rokita, the Indiana secretary of state and the new president of the secretaries of state association. In April, Mr. Rokita became the co-chairman of the state finance committee for Mitt Romney, who is seeking the Republican presidential nomination." See also Democrats Plan To Assess Voting State by State.

Posted by Rick Hasen at 07:51 PM