Monthly Archives: July 2011

“Teaching Bush v. Gore as History”

I have posted this draft on SSRN (forthcoming, St. Louis University Law Review symposium on teaching election law).  Here is the abstract:

This short essay, part of a symposium in the St. Louis University Law Review on teaching election law, examines what it means to teach the Supreme Court’s opinion in Bush v. Gore to students who did not experience the 2000 Florida controversy as adults. It offers three approaches to teaching Bush v. Gore as history: (1) The Florida debacle as Rashomon; (2) Bush v. Gore and Equal Protection Law in the Supreme Court; and (3) Bush v. Gore as the Beginning of History.

This is still a draft very much in progress.  Comments welcome!

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CRS Reports on Campaign Finance Policy and Honest Services Fraud

Congressional Research Service’s report “The State of Campaign Finance Policy:  Recent Developments and Issues for Congress” may be found here.  It provides an overview of recent developments, up through Arizona Free Enterprise Club.  Also of interest is this CRS report on mail and wire fraud (as well as an abridged version), including the “honest services” statute that was at issue in Skilling v. United States.

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Lowenstein Speaks on Silberman Judicial Bribery Case

Following up on this post, Dan Lowenstein sent this response to the election law listserv, which I am now reprinting with his permission.

Since Rick was imprudent enough to request my take on this case, here it is.  In my opinion, the California statute (and any similar statutes that may exist) should be construed to apply only to personal as opposed to political benefits offered to a potential candidate to induce him to drop out or not to run.  Admittedly, I am made uneasy by the fact that the language of the California statute does not suggest such a distinction.  But the statute, if construed to apply to political benefits, sweeps much too broadly.  Statutes, like other utterances, are and should be understood to be sensible.  For an explanation of why applying the statute to political benefits is not sensible, see my article referred to in the casebook.

Based on a cursory skim of the LA Times story that Rick links on his blog, Mr. Silberman is accused of offering to reimburse the other candidate’s filing fee.  It’s hard to tell based on that information alone whether he (allegedly) offered a personal or political benefit.

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“Mississippi NAACP Leader Sent to Prison for 10 Counts of Voter Fraud”

The Daily Caller reports on the conviction for absentee ballot fraud.  This article in the Tunica Times calls Lessadolla Sowers a community activist. According to this piece, Sowers was on the executive committee of a county NAACP chapter.

No evidence of any NAACP complicity offered.  No evidence of any in-person voter impersonation fraud, which would support the voter id law so fervently supported by the fraudulent fraud squad members in the linked reports.

Let’s see the squad start calling for an end to absentee balloting, and then I’ll take their concerns more seriously.

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“Republican Election Reform and the American Montesquieu”

Kirsten Nussbauer has posted this draft on SSRN.  Here is the abstract:

At the time of the American founding, discourse about election regulation was shaped by a venerated — but now long-forgotten — “republican” (or “whig”) tradition that taught that important election rules ought to be “fixed” in constitutions, not left to mere ordinary law, in order to protect popular sovereignty and limit electoral manipulation for incumbent, factional or partisan advantage. Men speaking on all sides of the debates about the framing and ratification of the U.S. constitution repeatedly invoked Montesquieu as authority for this tradition, and used (their understanding of) his precepts in order to evaluate each election provision of the proposed constitution for its conformity to the tradition. While some elections provisions were received as sharp departures from the tradition, others were taken to be faithful accommodations of the republican tradition to a new variant of federalism. Over time, the republican electoral tradition evolved from an emphasis on entrenching election rules against change to mere entrenchment of a requirement that election reform be channeled through constitutional processes.

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