Given the news that Rep. Foley has unexpectedly resigned from Congress and withdrawn from his race for reelection, the question of whether he can be replaced as a candidate is one governed by state law, in this case, Florida. As others have pointed out the issue is governed by Section 100.111(4)(a) of the Florida Elections Code (on page 31 of this pdf).
In a nutshell, a party committee gets to name a replacement for Representative Foley, but Foley’s name still appears on the ballot. Votes for Foley are deemed votes for his replacement. Given Foley’s association with scandal, this surely will work against Republicans: voters who are more likely to have heard about Foley’s scandal (and would vote against him) than have heard about the arcane Florida election law allowing votes cast for Foley to be counted for his Republican replacement.
A reader wrote to ask whether this somehow violates the Constitution—to have a rule that says a vote cast for X is really a vote cast for Y. I have not seen a case like that before, but my first instinct is that because this is a congressional election, the state Legislature has rather broad power to set the rules for the election (at least where Congress has not spoken). I would find it very difficult to believe that a court would set aside these rules, requiring that the replacement candidate be listed on the ballot as a matter of constitutional law. But it would be a great irony to see the Florida Republican Party go to court and ask a court to set aside the legislative rule for a federal election to protect the fundamental rights of Florida voters. If you don’t see the irony, go back and read this.

According to the docket entries, after the parties filed their briefs in the Measure R controversy, the Court of Appeal issued an order extending oral argument to November 28. It was supposed to be on October 3, giving time for the court to rule before the election.
The upshot: voters will get to decide whether or not to enact the package of extending term limits in LA and various ethics laws reforms. If it passes (and perhaps even if it doesn’t, though that’s unlikely), the Court of Appeal will consider whether the measure violates the separate vote/single subject requirements of the California constitution. You can find additional background on this case here and here.

With another switcheroo being discussed in New Jersey actively amid new corruption allegations, it is worth remembering that the Torricelli matter established the New Jersey Supreme Court precedent of allowing a party to replace a Senate candidate fewer than 61 days before the election in New Jersey, and that the NJ legislature has done nothing to change this rule since the Torricellii ruling. As I recall that ruling, the question is whether elections officials can still accommodate the change of a name on the ballot in the event of a withdrawal, which suggests a withdrawal soon if one is coming at all. The closer it comes to the election, the stronger the argument of Republicans that it will disrupt the elections process and therefore cannot be done under the New Jersey Supreme Court’s ruling.

I’m off to the Election Law and the Roberts Court symposium at OSU, which promises to be a terrific event. After that, I’ve got some other travel plans. Blogging will be light through October 6. But I have regained the ability to blog from my Treo, so I hope to keep up with at least breaking election law news.

This is unfortunate for the voters of Monterey County.

The Baltimore Sun offers this report.

Gerry Hebert has written this Roll Call oped ($), which begins: “It is not surprising to see noted campaign finance reform critic Robert Bauer pen yet another tirade about the successes of the Bipartisan Campaign Reform Act. However, it is surprising to see the current chairman of the Federal Election Commission, Michael Toner, join Mr. Bauer in thumbing his nose at enforcing the campaign finance laws.” Would you be surprised to hear that Bob Bauer has already responded? I like both of these guys a great deal, and it is too bad the rhetoric has become so heated.

Cases before three-judge courts in Washington D.C, but originating in Wisconsin and Maine, have challenged BCRA’s limits on t.v. or radio ads broadcast within 60 days of a general federal election or 30 days of a primary that feature a candidate running for federal office and are targeted at the relevant electorate. These ads cannot be paid for with corporate or union money; these entities instead must use a PAC.
The question presented in these cases—and recently ducked by the Supreme Court—is whether such ads that are genuinely about issues should fall under a constitutionally mandated exemption from this rule. (I was struck in reading this post on MyDD (which includes the line: “Tell Senator Collins/Snowe that no cheap partisan stunt is worth exposing our troops to torture, alienating our allies, and abandoning the Constitution”) that when Congress holds these sessions close to the election, drawing the line between genuine and sham issue advocacy will be difficult indeed. Of course, the MdDD post is not subject to BCRA’s provisions because, among other reasons, it is Internet-based communications.)
In any case, these two cases are before different three-judge panels, with direct appeal to the U.S. Supreme Court (no D.C. circuit or other intermediate review). Yesterday, a three judge court dismissed on justiciability grounds the complaint in Christian Civic League v. Maine, ruling the issues were unripe or moot. While I expect the plaintiffs to yet again seek Supreme Court review, I expect this case will be summarily affirmed by the Court. Not because it presents unimportant issues—the issues are very important. But because the lead case is likely to be the three-judge court opinion in the Wisconsin Right to Life case, which should come within the next few months (oral argument took place earlier this month). There is simply a much better factual record in this case for the Court’s review. Depending upon timing, this could still be heard by the Supreme Court in the October 2006 term, though the Justices would have some breathing room before the 2008 election season BCRA rules kick in.

Roll Call offers this report ($).

The NY Times offers this report.

this is a treo blogging test post.

George Will has written this new column, which begins: “Unalloyed good news is rare, so rejoice: The foremost achievement of the political speech regulators — a.k.a. campaign-finance ‘reformers’ — is collapsing. Taxpayer financing of presidential campaigns, which was in parlous condition in 2004, will die in 2008.”

Howard Bashman has it.

Chris Elmendorf has posted this draft on SSRN (forthcoming, Duke Law Journal). Here is the abstract:

In recent years, constitutional scholars have paid a great deal of attention to the emergence of constitutional courts and judicial review in democracies worldwide, yet an intriguing parallel development in democratic constitutionalism has gone largely unnoticed: the establishment of independent bodies which, like constitutional courts, are concerned with foundational commitments of liberal democracy, but which advance these commitments mainly through investigations and advice-giving. Lacking authority to block the implementation of unconstitutional laws and policies, the new advice givers instead make their contributions ex ante, identifying problems that warrant legislative attention and helping to craft laws and regulations that respond to foundational aspirations. This Article surveys the emergence of these advisory counterparts to constitutional courts and offers an account of their comparative advantage, relative to constitutional courts, as guardians of liberality. The Article also presents an initial treatment of the advisory counterparts’ characteristic limitations and dangers, and explores some associated questions of institutional design.

Chris has an article on a related topic coming out in the next issue of the Election Law Journal.