October 31, 2003

What is Senator Hatch Thinking?

This Los Angeles Times article on the filibuster of Charles Pickering, Sr. includes the following two paragraphs:

    After the vote, Sen. Orrin G. Hatch (R-Utah) predicted that the Republican Senate majority would soon take steps to suppress the Democrats' ability to use filibusters to thwart judicial nominees.

    He said that the framers of the Constitution did not envision that a minority of senators would be able to block a nomination on the Senate floor.


What is Hatch thinking? Readers of this blog will recall that Senator Lott made similar statements months ago during the Estrada filibuster, where he threatened the "nuclear option." Among other things the idea was that Republicans would reverse the filibuster rules by a simple majority vote.

Don't count on it. As I have explained in detail here, it would not be rational for Republicans to eliminate the filibuster though it is rational for them to threaten to do so. Democrats have an incentive to filibuster only a handful of the judicial candidates that they can market to their base as the most extreme. If the filibuster were used more widely, the "obstructionist" label used by Republicans would start to stick.

In the meantime, Republicans try to get as much mileage out of the controversy as possible. The Pickering vote was obviously timed to try to affect the outcome of the Mississippi gubernatorial race.

I expect this pattern of selective filibustering and name-calling to continue without much change until after the 2004 elections. If Bush is reelected and Republicans gain strength in the Senate, Democratic filibusters will likely disappear or be curtailed. If Bush is reelected and Democrats gain strength, I expect that Bush will either moderate his nominees or the filibusters will continue. If a Democrat is elected, I expect Republicans to block judicial nominations of some Democratic nominees, by filibuster if necessary. Democrats, of course, will then deride the filibusters as hypocritical.

Business in Washington continues as usual.

Posted by Rick Hasen at 09:23 AM

"Recall Backers Target Districts: A new initiative would assign the drawing of legislative boundaries to a panel of retired judges."

The Los Angeles Times offers this report.

Posted by Rick Hasen at 09:07 AM

Nonpartisan city election proposal in New York soon to come to vote

The New York Times offers Facing a Vote to End Primaries, Many New Yorkers Just Yawn. See also opeds by Richard Riordan and Bob Herbert.

Posted by Rick Hasen at 07:23 AM

Texas redistricting cases to trial in December

The Houston Chronicle offers Redistricting Challenges Trial Date Chosen. Thanks to Jim Dedman for the pointer.

Posted by Rick Hasen at 07:21 AM

October 30, 2003

"Groups Question Voting Machines' Accuracy"

A.P. offers this report, which begins: "Doubts about the trustworthiness of electronic voting machines are growing among election officials and computer scientists, complicating efforts to safeguard elections after the presidential stalemate of 2000."

Posted by Rick Hasen at 02:05 PM

USC Conference: Post-Mortem on the Recall

USC-Caltech Center for the Study of Law and Politics will be holding a conference, Post-Mortem on the Recall, on November 13 and 14. Details here. The conference is sponsored by the Jesse M. Unruh Institute of Politics, the Annenberg School for Communication at USC, the USC/Caltech Center for the Study of Law and Politics, the Initiative and Referendum Institute, the League of Women Voters of Los Angeles, and the California Center for Education in Public Affairs.

Posted by Rick Hasen at 09:52 AM

More Punch Card Analysis by Henry Brady

Henry Brady has set up this page with his collection of analyses of error rates with punch card voting in California. Most important is his new document, "Detailed Analysis of Punch Card Performance in the Twenty Largest California Counties in 1996, 2000, and 2003." One of his conclusions:

    Summary of Results from 1996 to 2003 – In 1996 ten of the twenty largest punch card counties (Alameda, Fresno, Los Angeles, Marin, Sacramento, Santa Clara, San Bernardino, San Diego, San Francisco, and Solano) used punch cards. By 2003 only five of the twenty used punch cards. The five counties that changed from punch cards to other systems are represented by solid triangles on Figure 3. This figure compares the residual vote performance of counties in 2003 (on the vertical axis) with their performance in 1996 (along the horizontal axis). All the counties that changed away from punch cards improved substantially. Their residual vote rates in 2003 were substantially below all the remaining punch card counties and similar to the residual votes for the non punch-card counties. The remaining punch card counties had an average residual vote rate of 7.77% in 2003, the counties that had employed non-punchcard systems since 1996 had an average residual vote rate of 2.14% in 2003, and those counties that had changed from punch cards between 1996 and 2003 had an average residual vote rate of 2.17% in 2003.

Brady also responds to an argument (made by, among others, Judge Kozinski at the oral argument in the en banc punch card lawsuit in the Ninth Circuit, Mickey Kaus, and L.A. Registrar-Recorder Conny McCormack) that errors in punch card votes can always be fixed by an after-the-fact recount of the votes:

    Recounts Prove there are no Problems – Some observers have claimed that the 1% recounts done after the election prove that there are no problems with punch card systems because these recounts obtain almost exactly the same result as the initial count. This claim misses the point. My argument is that the biggest problem with punch cards is that they fail to record the vote. There are also sometimes problems with counting the vote, but these problems are much smaller than recording the vote. If, as I argue, votes
    are never recorded, then counting and recounting them will not reveal a problem or solve it. (Counting and recounting your pocket change after your wallet has been stolen does not solve the problem.) The difficulty is that some intentional votes are not recorded by punch cards. When better voting systems are put in place, then these votes are recorded.

Posted by Rick Hasen at 09:44 AM

"Remap Debate Has Democrats Adopting Position of Convenience"

Stuart Rothenberg offers this oped in Roll Call (paid subscription required). He takes the same position I took here earlier this week: that re-redistricting in the same decade is bad policy, but not unconstitutional. He adds: "I might feel differently if I thought that Democrats really were standing on principle. But I didn’t hear any Democrats in Georgia (or Washington, D.C., for that matter) complaining about the state’s redistricting plan, which was drawn by Democratic legislators primarily with partisanship in mind."

Posted by Rick Hasen at 07:22 AM

Reports on touchscreen decision

A.P. is here. The Metropolitan News Enterprise is here.

Posted by Rick Hasen at 07:15 AM

October 29, 2003

Butterfly Ballot in California recall

See this A.P. report. The effect is dwarfed by the problems with punch cards, as chronicled here.

Posted by Rick Hasen at 07:22 PM

Conference on Building Trust and Confidence in Voting Systems

The National Institute of Standards and Technology is holding a forum on this topic December 10 and 11 in Maryland. Details here.

Posted by Rick Hasen at 03:15 PM

"Now That It's Finally Over, Let's Revamp the Recall"

California Assemblymember Mark Ridley-Thomas and law professor Erwin Chemerinsky offer this L.A. Times oped. My thoughts on Ridley-Thomas's proposals are posted here.

Posted by Rick Hasen at 10:42 AM

Appellants to Seek En Banc Review in Touch screen case

The appellants in the touch screen case (noted here yesterday) have announced their intention to seek en banc review of the ruling.

Posted by Rick Hasen at 10:29 AM

"Senate Moves on Election Commission"

Roll Call offers this report (paid subscription required), which begins: "Senators signaled their commitment this week to move quickly on the nominations of four individuals to the new Election Assistance Commission — a step experts say will be critical in ensuring that states are up to speed for 2004 balloting."

Posted by Rick Hasen at 07:21 AM

More on First Circuit redistricting case

Marty Lederman notes here that the First Circuit case (referred to a few posts below this one) creates a circuit split. Fritz Schranck offers his thoughts on the case here.

Posted by Rick Hasen at 07:18 AM

"Vote canvass draws near for gubernatorial election"

The Contra Costa Times offers this report on the post-recall California transition.

Posted by Rick Hasen at 07:14 AM

Rorty review of Posner book

Richard Rorty's review of Judge Richard Posner's "Law, Pragmatism, and Democracy" is available here. Link via How Appealing.

October 28, 2003

Important redistricting case from the First Circuit

The First Circuit has decided Metts v.Murphy. The case was a challenge by African-American residents of Rhode Ilsland to a the state senate redistricting plan under section 2 of the Voting Rights Act. Plaintiffs "allege that although African-Americans did not constitute a numerical majority in any state senate district before redistricting, they have historically had the ability to elect a representative of their choice with the help of crossover votes in one of the former districts. They claim that as a result of the redistricting plan, this opportunity has been adversely affected (indeed, eliminated) by the reduction of the African-American percentage in the relevant district. After the districts were redrawn, their candidate of choice, at that time an incumbent, lost his seat in the Democratic Party primary. Because of the makeup of the newly configured district, the victor in the primary was effectively assured of being the victor in the general election."

The district court had dismissed the claim on grounds that African Americans were not large enough to form a majority in a district, and therefore that the Section 2 claim failed. Drawing a distinction between "influence districts" and "crossover districts," a 2-1 majority of the First Circuit reversed. According to the majority, "[m]ost often, influence districts have been defined as ones 'in which a minority group has enough political heft to exert significant influence on the choice of candidate though not enough to determine that choice.'" The majority defined a crossover district as one "in which a minority group constituting less than fifty percent of the electorate can elect a candidate of its choice with the help of crossover votes from voters in the majority group." Holding that the Supreme Court has left over the question whether the denial of crossover districts can constitute a section 2 violation, the majority said that it could.

The dissent disagreed: "In short, I do not believe that section 2 of the VRA authorizes vote dilution claims that are wholly dependent upon massive crossover voting. There is a critical distinction between minority-preferred candidates who lose because redistricting excludes too much of the minority electorate from a particular district (illegal vote dilution) and minority-preferred candidates who lose because they do not attract enough votes from other folks within the district (legal majoritarian rule). The amended complaint, even when taken at face value, blurs this distinction."

This case is sure to spark interesting commentary on how far section 2 of the Voting Rights Act does, and should, go.

Posted by Rick Hasen at 01:55 PM

Ninth Circuit Holds that Use of Touchscreen Voting System without paper trail does not violate United States Constitution

The Ninth Circuit has decided Weber v. Jones, challenging the certification of touch screen voting in California. From the opinion:

    We cannot say that use of paperless, touchscreen voting systems severely restricts the right to vote. No balloting system is perfect. Traditional paper ballots, as became evident during the 2000 presidential election, are prone to overvotes, undervotes, “hanging chads,” and other mechanical and human errors that may thwart voter intent. See generally Bush v. Gore, 531 U.S. 98 (2000). Meanwhile, touchscreen voting systems remedy a number of these problems, albeit at the hypothetical price of vulnerability to programming “worms.” The AVC Edge System does not leave Riverside voters without any protection from fraud, or any means of verifying votes, or any way to audit or recount. The unfortunate reality is that the possibility of electoral fraud can never be completely eliminated, no matter which type of ballot is used. Cf. Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975) (“Voting device malfunction [and] the failure of election officials to take statutorily prescribed steps to diminish what was at most a theoretical possibility that the devices might be tampered with . . . fall far short of constitutional infractions . . . .”). Weber points out that none of the advantages of touchscreen systems over traditional methods would be sacrificed if voter-verified paper ballots were added to touchscreen systems. However, it is the job of democratically-elected representatives to weigh the pros and cons of various balloting systems. So long as their choice is reasonable and neutral, it is free from judicial second-guessing. In this instance, California made a reasonable, politically neutral and nondiscriminatory choice to certify touchscreen systems as an alternative to paper ballots. Likewise, Riverside County in deciding to use such a system. Nothing in the Constitution forbids this choice.

(footnote omitted)

Posted by Rick Hasen at 11:50 AM

"E-Voting or Punch Cards?"

The Santa Cruz Sentinel offers this report. In somewhat related news, A.P. offers "Diebold Warns on Electronic Voting Papers."

"Pa. court race turns negative as anonymous calls surface"

The Philadelphia Inquirer offers this report (link via How Appealing).

Posted by Rick Hasen at 08:27 AM

"The New Soft Money"

Fortune offers this report, with the subheading: "Campaign-finance reform didn't kill big political donations, it just changed the rules of the game. Meet the players." See also this Washington Post report, which details the activities of the "New Democratic Network," aimed at getting around BCRA's ban on soft money spending by national political parties.

Posted by Rick Hasen at 08:23 AM

October 27, 2003

Ninth Circuit upholds Seattle, Washington law preventing a candidate from referring to his opponent in a voter pamphlet

The opinion in Cogswell v. City of Seattle is here. (Link via How Appealing.) Applying First Amendment doctrine, the court determined that the ballot pamphlet was a limited public forum and that the limitation preventing references to one's opponents was reasonable:

    The restriction in SMC 2.14.060(C), that a candidate's statement “shall not discuss the opponent,” is not unconstitutionally viewpoint biased because Seattle has legitimately preserved the parameters of its voters’ pamphlet by limiting the subject matter included in the forum to candidate selfdiscussion. The restriction is reasonable because it furthers the purpose for which Seattle created the forum.


Posted by Rick Hasen at 11:27 AM

Waiting for ruling in Colorado re-redistricting case

See this report in The Daily Sentinel (Denver).

Posted by Rick Hasen at 07:35 AM

Foley response now available

The Election Law Journal has now web-published the latest in the debate between Ohio State law professor Ned Foley and Perkins Coie election lawyer Bob Bauer over Foley's theories on overbreadth in the campaign finance context. You can access the response here. Foley's original piece is here (and now published in ELJ 2:4) and Bob Bauer's original reply is here.

Posted by Rick Hasen at 07:33 AM

"Senate hopefuls must give on-screen OK of ads"

The Chicago Sun-Times offers this report on an aspect of BCRA that has not received much attention in the popular press.

Posted by Rick Hasen at 07:29 AM

October 26, 2003

My book now available at Amazon.com and Barnesandnoble.com

You can find it here (Amazon) and here (Barnes and Noble). Barnes and Noble is offering a 20% discount.

Posted by Rick Hasen at 01:50 PM

The media exception and candidate control of the press

NJ.com offers this report, which begins: "The two independent candidates for township committee said Thursday they are filing complaints against their opponents with the Warren County Prosecutor's Office and the state Election Law Enforcement Commission. The independents, Debra Waldron and incumbent Giovanna 'Joanne' Van Valkenburg, say Republican candidate Gary Stevens is using his newspaper, the North Warren News, to further his own political interests."

This case has been debated on the election law listserv a bit. Start here and follow the "freedom of the press" thread.

Posted by Rick Hasen at 01:41 PM

Newsday editorial against non-partisan elections in New York

See here. See also this oped in the New York Post. In related news, the New York Times offers Mayor Stakes $2 Million of His Own to Fight Party Primaries.

Posted by Rick Hasen at 01:38 PM

The Future of the Voting Rights Act

The December 2003 issue of Legal Affairs offers a debate on the continued vitality of the Voting Rights Act. Edward Blum and Roger Clegg offer this criticism of the Act. Anita Earls offers this defense of the Act. (My working paper on potential constitutional problems with a Congressional decision to renew section 5 of the Act in 2007 is available here.)

Posted by Rick Hasen at 01:29 PM

"Law Forces Hard Decision on Soft Money"

Louisiana's 2theadvocate.com offers this report.

Posted by Rick Hasen at 12:31 PM

Is re-redistricting unconstitutional?

The Washington Post has an article by Edward Walsh, Redrawing Districts Raises Questions; No Precedent Seen for GOP efforts. (There's also this related article on Texas redistricting.)

The article considers the constitutionality of the practice that took place in Texas and Colorado to do a second redistricting in a single decade. Multiple redistrictings have been done in a single decade before, but for purposes of remedying a constitutional or Voting Rights violation. These redistrictings were done for partisan (in this case, Republican) advantage.

Under what theory might re-redistricting be unconstitutional? According to the article, "[i]n a lawsuit filed in U.S. District Court in Tyler, Tex., [Democrats] note that the Constitution requires that House seats be reapportioned among the states after each 10-year Census. An 'implicit assumption' of that reapportionment mandate, the Democrats argue, is that the redrawing of district lines within states will take place on the same schedule."

The Democrats' lawyer, Sam Hirsch, further explains in the article:

    "All we're saying is that implicit in decennial reapportionment is decennial redistricting," said Sam Hirsch, a lawyer for the Texas Democrats. "American constitutional law is full of implicit assumptions. The idea that reapportionment and redistricting are tied together is a small inferential leap. The reason is that reshuffling districts every two years undermines democratic accountability. People should be able to vote for representatives who served them well and against those who have not served them well."

I think this is another unfortunate example of losers in the political process looking to courts to create new substantive rights in an effort to achieve a result that cannot be achieved politically. It is more than a small inferential leap to go from constitutionally mandated apportionment to a constitutional cap on the number of redistricting in a decade. The Constitution requires the decennial reapportionment to make sure the representation among the states is proportional to the population of those states. The principle at work here is one of equality or fairness across the states. It has little to do with accountability.

It would be a big leap for a court to say that because we must apportion every ten years, we may not redistrict within an apportioned state more than once a decade. Such a rule does nothing to further the goals of reapportionment.

I agree with Sam and with Tom Mann (quoted in the article) that multiple redistricting in a single decade is a bad thing, not only on grounds of accountability but also on grounds of political instability. And legislators focused on redistricting battles--such as legislators in Texas--can hardly concentrate on legislative business. But the solution then is to do as some states have done and forbid the practice of re-redistricting in a single decade. In those states that have an initative process, such a change could be enacted without legislative approval. In other states, it would be a tougher battle, most likely to be enacted when either Democrats or Republicans can see themselves on the wrong end of a re-redistricting in a finite time horizon.

But there are real costs to constitutionalizing policy choices like this, both related to further enmeshing courts in the political process and further removing options for future experimentation by states in ways that may be unforeseen today.

That's not to say that the Texas re-redistricting is legal. It could violate the Voting Rights Act or have some other problem. But I don't see creating a new constitutional right here.

Posted by Rick Hasen at 12:24 PM

October 25, 2003

David Dill Responds to Kahn Post

You can access Dill's response, send to the Votingtech list, here.

Posted by Rick Hasen at 04:46 AM

October 23, 2003

A defense of touchscreen security in Georgia

I received the following e-mail message from Bobby Kahn:

    By way of introduction, I served as Chief of Staff for Georgia Governor Roy Barnes from 1999 – 2003. Governor Barnes was upset in the 2002 election. Recent articles have suggested that his loss may have been a result of Georgia’s adoption of a uniform system of Diebold touch screen voting.

    I would love to believe that Governor Barnes really won, and that he lost because of a computer meltdown or a grand conspiracy. Then maybe we can have a “do-over.” Truth is, Governor Barnes lost in large part as a result of a racist campaign by his opponent, who attacked Governor Barnes for spearheading a compromise effort to greatly reduce the size of the confederate battle emblem on the Georgia state flag. But that’s another story.

    I now find myself a member of the Georgia State Election Board, which oversees elections in the state. As a result, I am reading more and more from conspiracy theorists and technophobes about touch screen voting.

    By way of disclosure, I am predisposed to believe in the touch screen systems because following the 2000 elections, our office worked very closely with Secretary of State Cathy Cox to fund and implement the nation’s first uniform statewide touch screen voting system. Secretary of State Cox took a huge political risk, and did a first class job in implementing the system in Georgia’s 159 counties, which included training each of the 159 election superintendents and their poll workers responsible for conducting elections (Georgia has more counties than any state other than Texas!). She is at the forefront of post-Florida efforts to modernize voting.

    Before addressing the feeding frenzy of charges, let’s look at what the touch screens replaced. I remember the first election in which I voted – 1976 presidential primary. Chatham County (Savannah) Georgia used lever machines. I pulled the lever for Jimmy Carter, and immediately wondered if the vote would ever count. I have wondered ever since. No paper trail. Nothing to recount. No redundancy. And the “technology” – give me a break. We are painfully aware of the drawbacks of punch cards, and less so, optical scan machines. And once the votes are cast, what becomes of the punch card, scan sheet, or machine. All are subject to tampering, with fewer checks than the touch screen system in use in Georgia.

    Just what are the checks in Georgia? First, the system is qualified by an ITA, or Independent Testing Authority, which is the gold standard in this area. Georgia is fortunate to have the Center for Election Systems at Kennesaw State University (KSU), which has unmatched expertise in voting systems. KSU reviews the system for compliance with state law, and tests the system for presence of any unauthorized or fraudulent code. After the successful completion of this process, the system is then certified for use in Georgia. Once certified, the vendor is then allowed to install the system in local jurisdictions. As an additional guard against uncertified equipment being used in an election, KSU has developed a validation program to use to test the system as installed in local jurisdictions. Using this process, KSU verifies that the system installed by the vendor, Diebold, in the local jurisdiction is identical to the system received from the ITA and certified by KSU. Within each jurisdiction, software security includes audit logs and passwords. There are procedural security features regarding access, qualification testing, certification testing, acceptance testing and logic and accuracy testing. As for physical security, there are at least five requirements: servers are always kept in locked offices of county officials; no extraneous software can be installed on servers; no network connectivity; physical access limited to authorized personnel; and touch screen units are locked and sealed when not in use.

    Security is an on-going process, and is constantly updated. Most recently, KSU developed a state-of-the-art “hashing” program used to examine the servers in all 159 counties. This program is designed to assure that software operating on the county servers matches precisely the software that was tested and certified at the national and state levels, and that no extraneous software resides on the servers. The Secretary of State plans to extend this “hashing” capability to all 26,000 touch screen terminals.

    Still, the technophobes and conspiracy theorists don’t give up. Consider the charges:

    -Hackers. Many of the critics and conspiracy theorists assume that all the equipment is networked and accessible via the internet. Not true, at least in Georgia. Hard to hack when not on the internet. Even if a hacker could physically gain access to the server at the state, or in one or more of Georgia’s 159 counties, there are all kinds of checks along the way. The hacker would also have to get to one or more of the touch screen machines. And to truly have an impact in a statewide election, the hacker would have to gain access to servers in more than one county. The hacker would have to do all this within a narrow timeframe, since there are physical seals and checks in place.

    -Error. How do you know the vote was cast? How do you know it was counted. That’s the question I have about my vote for Jimmy Carter in 1976. Same question applies to touch screens today. No system is 100% error free. But the touch screen system comes close. And the undervote (a problem in Florida) has been significantly reduced. In Georgia, the undervote in the top ticket races in 1998 was 4.8%. In 2002, the undervote had fallen to less than 0.9%. Significant reductions came in minority precincts. Perhaps some of the critics of touch screen would prefer a greater undervote in minority precincts!
    See Preliminary 2002 Undervote Analysis.

    -Need for a paper receipt. The latest attack on touch screen systems has centered around the need for a paper receipt. In analyzing the Maryland touch screen system, SAIC (Science Applications International Corporation) addressed this issue: “A printed ballot (receipt) would still be subject to fraud. A compromised machine could be programmed to record votes incorrectly, but provide a correct paper ballot to the voter. Only in the event of a total recount would this be discovered. Additionally, the process of hand counting the millions of votes is time consuming and prone to error.” In addition to the fact that reintroducing paper into the process raises objections from advocates for voters with disabilities (see here), paper has been the source of many of the fraud cases, at least in Georgia. And paper is more prone to error – loss or destruction of ballots, whether intentional or not. With touch screen, on the other hand, there are redundancies built into the system, so even if a machine is damaged, there is at least one backup to make sure the votes are counted.

    -The Rubin report. Technophobes and conspiracy buffs find comfort in a report by Johns Hopkins University Researcher Avi Rubin. He raises a number of the issues dealt with above, and is highly critical of Diebold. Many of his criticisms were theoretical, with very little real-world application. One aspect of the Rubin report has a great deal of real-world application – good old fashion conflict of interest. Turns out, Rubin had stock options in VoteHere, a competitor of Diebold. Rubin was also a member of VoteHere’s technical advisory board. (Atlanta Journal-Constitution, August 20, 2003; see here.).


    I have just hit the highlights here. There are many other sources. See Letter from Secretary Cox to Election Board Members (here; here). Bottom line, the system we have in Georgia is not perfect, but I believe it is the best voting system in the world. Is there room for improvement? Yes, and Secretary of State Cathy Cox is working on implementing improvements every day. Am I happy with the results of the 2002 election? Of course not, but for better or for worse, the count was accurate.

    Bobby Kahn


Thanks for writing.

Posted by Rick Hasen at 09:52 PM

"GOP to Put Challengers in Black Voting Precincts; Critics Call Strategy Intimidation"

The Courier Journal (Louisville, Kentucky) offers this report. Thanks to Lori Ringhand for the pointer.

Posted by Rick Hasen at 04:28 PM

Light blogging

I'm off to Washington DC for the AALS faculty recruitment conference as part of my school's hiring team. Blogging will be light until Monday.

Posted by Rick Hasen at 10:35 AM

"Recall Initiative Booster Targets Gerrymandering"

The Contra Costa Times offers this report.

Posted by Rick Hasen at 07:27 AM

"Students Fight E-Vote Firm"

Wired offers this report, concerning controversy over Diebold documents related to touch screen security. (Thanks to Steven Sholk for the pointer.)

Posted by Rick Hasen at 07:25 AM

"BCRA Interferes with Debt Payoff Plans"

Roll Call offers this article (paid subscription required), which begins: "If outgoing Sen. Peter Fitzgerald’s (R-Ill.) experience is any guide, retiring old campaign debts appears to be more difficult than retiring from the Senate itself. And campaign finance experts say the business of settling debts for self-financed candidates will get even stickier under provisions of the new campaign finance law."

Posted by Rick Hasen at 07:19 AM

October 22, 2003

"Once at Arm's Length, Wall Street Is Now Bush's Biggest Donor"

Tomorrow's New York Times will feature this front page report.

Posted by Rick Hasen at 07:23 PM

Webcasts, other valuable links, at UC Berkeley Recall Conference Site

Last Saturday, UC Berkeley's Institute for Governmental Studies held a conference on the recall. It was at this conference that Attorney General Bill Lockyer made the remarks about voting for Schwarzenegger on part 2 of the recall ballot. The conference's web page now has links to a webcast of portions of the conference, as well as other valuable links.

Posted by Rick Hasen at 12:44 PM

More briefs filed in the Vieth v. Jubelirer partisan gerrymandering case

As readers of this blog know, the Supreme Court will be hearing a very important case soon raising the possibility that the Court will put some teeth into the now feeble partisan gerrymandering doctrine. (Don't get me wrong, I like the fact that the doctrine is feeble.) The case is all the more important given controversies over re-redistricting in Texas and Colorado.

Jenner and Block, representing the appellants, has posted the most recent set of briefs (filed by appellees and amici) here. Be sure not to miss this letter, which explains why Pennsylvania will not be undergoing the same kind of dispute between the state's governor and attorney general as occurred in Georgia during last term's Georgia v. Ashcroft case.

I expect to be writing more about this case in the coming weeks, before oral argument on December 10.

Posted by Rick Hasen at 11:50 AM

"Recall Bid Ousts Wis. Sen. Gary George"

A.P. offers this report.

Posted by Rick Hasen at 10:42 AM

The Prospects of Reform of the Recall Election process

Yesterday I participated in a very interesting forum on recall reform, sponsored by California Assemblymember Mark Ridley-Thomas. There was widespread consensus on the panel (which also included attorney general Bill Lockyer, attorney Karen Getman (former chair of California's FPPC and a lawyer who worked on Gov. Davis's challenges to various recall laws filed in the California Supreme Court), and Prof. Erwin Chemerinksy). But consensus on the panel doesn't translate into consensus in California about the need for recall reform. The panel did not include a single person who favored the recall.

Ridley-Thomas's proposed legislation (much of which would have to go into a proposed constitutional amendment voted on by the people) is ambitious. Among many other provisions, it would double signature thresholds for qualifying an initiative for the ballot. (I made similar proposals and others here back in August.)

At the forum, I urged Ridley-Thomas to split his proposal into two bills. The first would clean up some of the obvious inconsistencies and gaps in the law (e.g., what nomination rules apply to replacement candidates), and the second would include his wish list of proposed reforms. My guess is that he could build widespread consensus for the clean up legislation (and much of it could be done without constitutional amendment, because it involves only statutory changes). I predict significant opposition to more substantive changes. Some people think that the recall process worked fine last time (putting aside the two dozen lawsuits---many of which revolved around issues that would go away with clean-up legislation), and recall reform, in their view, arguably calls into question the results of the last election. This sentiment is expressed in two news stories on the proposed legislation, here at the Sacramento Bee and here in the New York Times.


The clean-up legislation is absolutely necessary to prevent confusion and unnecessary litigaion next time. We should not lose sight of this as the top priority for recall reform in California.

Posted by Rick Hasen at 07:39 AM

Symposium on North American Election Law at American University (Washington D.C.)

Readers may be interested in the following conference information:

    AMERICAN UNIVERSITY
    CENTER FOR DEMOCRACY AND ELECTION MANAGEMENT
    CENTER FOR NORTH AMERICAN STUDIES
    WITH
    ELECTION LAW JOURNAL AND
    ELECTIONS CANADA, ELECTORAL TRIBUNAL OF MEXICO,
    UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT’S
    MEXICO ELECTIONS PROJECT,
    AND UNIVERSITY OF NEW HAMPSHIRE
    CO-SPONSOR

    DEMOCRACY AND ELECTIONS IN NORTH AMERICA:
    WHAT CAN WE LEARN FROM OUR NEIGHBORS?

    SATURDAY, NOVEMBER 15
    Butler Boardroom, American University main campus

    THE ADMINISTRATION OF ELECTIONS 9:00-10:30 am

    Chair: Robert Pastor, American University
    Canada: Jean-Pierre Kingsley, Chief Elections Officer, Canada
    Mexico: Jacqueline Peschard Mariscal, Federal Election Institute, Mexico (IFE)
    U.S.: Leonard Shambon, Counsel,Wilmer, Cutler, and Pickering; legal advisor to the Carter-Ford Commission on Election Reform

    Commentators: E. J. Dionne, Washington Post
    Richard Smolka, Professor Emeritus, American University and Editor of Election Administration Report

    Break 10:30-11:00 am

    CAMPAIGN FINANCING 11:00-12:30 am

    Chair: Juan Williams, National Public Radio
    Canada: Lisa Young, University of Calgary
    Mexico: Jesus Orozco, Judge, Federal Electoral Tribunal of Mexico
    U.S.: Donald Simon, Of Counsel, Common Cause

    Commentators: Thomas E. Mann, Senior Fellow, Brookings Institution
    Diane Davidson, Deputy Chief Electoral Officer and Legal Counsel, Elections Canada

    Lunch 12:30-1:45 pm

    PROCEDURAL AND CONSTITUTIONAL ISSUES 2:00-3:30 pm
    A Roundtable

    Chair: Fernando Ojesto Martinez, President, Federal Electoral Tribunal of Mexico

    1. What the U.S. Can Learn from Canada on Re-districting
    John Courtney, University of Saskatchewan

    2. What Mexico (and others) Would Gain from Instant Runoff Voting
    Robert Richie, Executive Director, Center for Voting and Democracy

    3. What Mexico Can Learn from the U.S. on Conducting Party Elections
    Steve Wuhs, University of Redlands

    4. What the U.S. Can Learn from Mexico on Registration and Identification of Voters
    George Grayson, College of William and Mary

    5. Re-Defining Electoral Democracy: What Everyone Can Learn
    Keith Archer, University of Calgary

    5. Memoranda on Constitutional and Procedural Issues:
    a. “The Right to Vote in the U.S.,” Jamin Raskin, American University Washington College of Law
    b. “Re-Electing Congress in Mexico,” Jeffrey Weldon, ITAM, Mexico
    c. “Enforcing Campaign Finance Laws in Canada,” Diane Davidson, Elections Canada
    d. “Resolving Electoral Disputes in Mexico,” Todd Eisenstadt, American University

    Commentators: James Thurber, Director, Center for Congressional and Presidential Studies, American University
    Richard Berke, New York Times

    Break 3:30-4:00 pm

    LEARNING FROM EACH OTHER 4:00-5:30 pm

    Chair: Benjamin Ladner, President, American University
    Canada: Joe Clark, former Prime Minister and former Foreign Minister, Canada
    Mexico: Jesus Silva-Herzog, Mexico’s former Ambassador to the US and former Finance Minister
    U.S.: Robert A. Pastor, Vice President, American University

    Commentator: Richard L. Hasen, Loyola Law School, Los Angeles and Co-Editor of Election Law Journal


There is no charge for attending the conference. Conference papers will appear in a future issue of the Election Law Journal. UPDATE: If you are interested in attending, please notify the Office of International Affairs at 202-885-1535.

Posted by Rick Hasen at 07:20 AM

October 21, 2003

Time to End Life Tenure of Federal Judges?

It has been a while since I've had time to blog about the judicial confirmation process and filibusters (something I spent a great deal of time on last spring). But it is worth noting that someone as moderate and middle-of-the-road as Norm Ornstein is now questioning whether we want to abolish life tenure for federal judges. In this Roll Call oped (paid subscription required), Ornstein asks if the "downward spiral" in judicial nominations (he must have been reading Larry Solum's blog) means taking radical action like ending life tenure.

Ornstein writes:

    It is time to reconsider Article III, Section I of the Constitution, which gives federal judges lifetime appointments. I know, I know, this is sacred territory. And the Framers both carefully considered judicial tenure and eloquently defended the term of good behavior for judges in Federalist 78 and a refusal to impose age limits for judges in Federalist 79. Permanent tenure was a bulwark against legislative and executive encroachment and improper influence and was an incentive to get the most fit and skilled individuals to leave lucrative practices to join the judiciary.

    But lifetime tenure also skews the impact of each appointment, giving a president the temptation to pick young ideologues who will leverage the presidency for many decades thereafter. And lifetime tenure increases the stakes of each appointment, making tough battles tougher, encouraging the use of more hardball tactics and giving opposition parties more reasons to block as many appointments of a president as they can, to leave these lifetime plums open for a president of their own.

    The arguments for lifetime tenure are not as powerful as they were back then. Nowadays, given that federal judicial pay is about the same as that of a second-year associate at a major law firm, lifetime tenure as a judge is not quite the same lure as it was in the 1780s. And while lifetime tenure does insulate judges from pressure from Congress, the president, attorney general or other officials, a long-term fixed appointment could easily provide comparable insulation.

    My first cut at this would be to leave the Supreme Court as it is, with lifetime appointments; there are few enough appointments, and the system can easily handle the infrequent, knock-down, drag-out battles. But I would recommend a 12- or 15-year appointment for lower court federal judges.

    These appointments would be nonrenewable, to take away the pressure on the judges in the last year or two of their terms to shift their opinions to conform to the desires of the president or his party. For relatively young people, it would be possible to serve and then build a capital base for children and grandchildren. For older people, it could be a capstone for a career. For presidents, appointments could be made without the temptation to go young to solidify your legacy for even longer.


This is surely a cure that is worse than the disease. First, a large number of Bush's judicial appointments are getting through. Second, the ones that are not getting through tend to be those that Democrats can credibly paint as ideologically outside the mainstream. Third, if we are worried about a politicized judiciary, shortening terms only exacerbates the problem. Indeed, a few years ago, I looked at the political science literature on judicial indepedence in writing about the intersection of the Voting Rights Act and the election of judges. It appears that the best way to insure the independence of the judiciary is to lengthen judicial terms. Ornstein's suggestions are a step in the wrong direction.

The best way to solve the problem is a political solution: eventually, the president will choose to nominate more moderate nominees or Democrats (perhaps after losing more seats in the next election) will cave in on more of the ideologically extreme candidates chosen by the President. The problem is not as bad as Ornstein makes it appear.
UPDATE: Larry Solum responds here.

Posted by Rick Hasen at 10:30 PM

And in recall litigation news from Wisconsin [!]

The Milwaukee Journal-Sentinel offers Supreme Court Deadlocks on George Recall, which begins: "A last-ditch attempt by Sen. Gary George to delay a recall election fell short Monday when the state Supreme Court deadlocked on his appeal, paving the way for Tuesday's vote." Thanks to Howard Bashman for the pointer via e-mail.

Posted by Rick Hasen at 03:03 PM

"Extra Broward mail-in ballots cause fear of fraud; Ballots have been sent to people who moved, raising questions about fraudulent votes in elections in four Broward communities"

The Miami Herald offers this report.

Posted by Rick Hasen at 09:55 AM

"Md. Democrats Want Outside Voting Machine Audit"

The Washington Post offers this report.

Posted by Rick Hasen at 09:52 AM

Brazile, Broder opeds on Campaign Legal Center website

The Campaign Legal Center has posted "Schwarzenegger, Dean Lesson: Fix the Money Problem in Politics" by Donna Brazile (originally appearing in Roll Call) and "Level the Presidential Playing Field" by David Broder (originally appearing in the Washington Post).

Posted by Rick Hasen at 09:44 AM

Forum today on reforming the recall process

I'll be speaking today at USC law school at 12:30 today on ideas for reforming the recall process. The forum is sponsored by California Assemblymember Mark Ridley-Thomas, and will also feature Erwin Chemerinsky, Karen Getman, and California Attorney General Bill Lockyer. (Last time Lockyer spoke on the recall was Saturday at a UC Berkeley forum, where the Democrat revealed that he voted for Schwarzenegger on part 2 of the recall ballot).

Posted by Rick Hasen at 06:20 AM

October 20, 2003

Election Law Journal 2:4 table of contents now available

The table of contents for Election Law Journal 2:4 is now available here. Look for ELJ 3:1 in January featuring Bob Bauer's reply to Ned Foley's article on overbreadth and BCRA (prepublication web version posted here), Foley's response to Bauer (to be web-posted soon), Pam Karlan on Georgia v. Ashcroft, Evan Gerstman and Matthew Streb on legislation banning push polling, a Supreme Court case preview of the partisan gerrymandering case, Vieth v. Jubelirer, by Clark Kelso, and book reviews by Morgan Kousser and Dan Lowenstein.

Posted by Rick Hasen at 04:02 PM

"Motor voter system a work in progress; Counties try to fix snafus, educate public"

The San Francisco Chronicle offers this report, which begins: "Seven years after its debut, California's motor-voter program has yet to work out all the bugs -- leaving some voters stranded and fuming when their DMV voter registrations never make it to the precinct on election day." Thanks to Electionline.org for the pointer.

Posted by Rick Hasen at 07:46 AM

"Delay's Work for Rum Maker Criticized"

See this Palm Beach Post article.

Posted by Rick Hasen at 07:42 AM

"Campaign Reform Increases Voter Ignorance"

Linda Seebach writes this oped on the BCRA. See also this critical editorial in the Las Vegas Review Journal.

Posted by Rick Hasen at 07:35 AM

Two important Roll Call articles

Today's Roll Call features House Admin Requests BCRA Symposium (which includes information on Thursday's House hearing on FEC enforcement, a hearing that reform advocates claim they were excluded from) and NRCC Jumps at Chance to Use Earmarking PAC. Readers of this blog know about the FEC's recent approval of earmarking program of the Democratic group, WE LEAD, to raise money for an eventual presidential nominee. The opinion may have broader implications for fundraising. The article begins: "Though it was ostensibly about the presidential contest, a recent advisory opinion from the Federal Election Commission could significantly alter the way party committees inject themselves into competitive House and Senate primaries." It explains that the NRCC has already set up such a fund for a Kentucky House race.

As always with Roll Call, paid registration is required to read the articles.

Posted by Rick Hasen at 07:33 AM

Voting Technology Reform in New York

The New York Times today features this extensive article on the politics of changing the voting machinery for New York elections.

Posted by Rick Hasen at 07:26 AM

Solum on Election Law book

Thanks to Larry Solum of the Legal Theory blog, for featuring my new book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore, as the selection for this week's Legal Theory Bookworm.

Posted by Rick Hasen at 07:23 AM

October 17, 2003

"FEC Dismisses Complaint Against Gore"

The Washington Post offers this report.

Posted by Rick Hasen at 10:54 AM

"Election Officials Express Concern Over Under-Funded Federal Reform"

Electionline.org offers this report.

Posted by Rick Hasen at 08:54 AM

Abstention in Spargo case?

Back on August 13, 2003, Howard A. Levine and Roy A. Schotland wrote an oped in the New York Law Journal suggesting that the Second Circuit abstain from deciding the Spargo case, involving the constitutionality of an aspect of New York's code of judicial conduct. The oped, called "Judicial Campaign Rules," is available here for those with a Lexis-Nexis subscription.

Although the parties did not pay attention to abstention in the briefs, apparently it was the focus of much of the Second Circuit's oral argument last month.

UPDATE: For more on abstention, see the ABA amicus brief in the case.

Posted by Rick Hasen at 08:17 AM

The Millionaires' Provision of BCRA (McCain-Feingold)

The New York Times today features this article on a provision of the BCRA that raises individual contribution limits for federal candidates running against self-financed opponents. Although this provision was challenged in the lower court, the lower court judges held that the challenge was not yet ripe to be decided.

One troubling aspect of the provision is that it may be used to argue against the constitutionality of the contribution limits imposed by Congress. As the Times article explains, the normal $2,000 contribution limit has gone to $12,000 in the Illinois Senate race because of one candidate's self-financing. If a contribution limit can go as high as that, what does that say about the need for the $2,000 contribution limit to prevent corruption or the appearance of corruption? In the litigation over Proposition 208 in California, the district court judge used a variation in contribution limits along similar lines to strike down the lower contribution limit as not tailored enough to prevent corruption.

I think the best answer to this argument is that Congress is trying to achieve multiple goals with the legislation, and it determined to sacrifice something in terms of the danger of corruption or the appearance of corruption in order to assure competitive races when self-financed candidates are involved. (Of course, in my view, the better long-term solution to this problem is for the Supreme Court to overturn that aspect of Buckley v. Valeo preventing legislatures from limiting the spending of millionaires on their own campaigns.)

Posted by Rick Hasen at 08:06 AM

October 16, 2003

"Electing to Change How We Vote*Use of mail-in ballots -- however cheap and convenient they might be -- could erode democratic choice"

Paul Gronke offers this Los Angeles Times oped.

Posted by Rick Hasen at 09:01 AM

Survey results on recall reform

The Sacramento Bee offers this report on a PPIC study of voter attitudes toward the recall and the process. Most interesting to me was this about potential recall reform: "Voters had contradictory sentiments about the process. While they liked the populist principles of a recall, they didn't think just anybody should be able to run. Two-thirds said it was bad to have 135 candidates on the ballot. Many voters want to make it more difficult for candidates to qualify for the ballot. About half of those surveyed said the recall made them feel worse about California politics." I cannot find the PPIC survey yet on the PPIC website.

Posted by Rick Hasen at 07:22 AM

"Partial Hand-Count of Ballots Reveals Few Irregularities"

The Los Angeles Times offers this report.

Posted by Rick Hasen at 07:13 AM

October 15, 2003

Wired's Take on Touch Screen Voting Controversies

See here.

Posted by Rick Hasen at 07:35 PM

House hearing on FEC enforcement practice and procedures

From Alison Hayward: "The Committee on House Administration of the U.S. House of Representatives will hold a hearing tomorrow, Oct. 16, 2003, on FEC enforcement practices and procedures. I understand it will begin at 3:00 pm in 1310 Longworth HOB. More information can be found here."

Posted by Rick Hasen at 09:23 AM

Democrats' moving papers in Texas re-redistricting case

Ed Still of the Votelaw blog has posted the Democrats' initial pleading in the Texas re-redistricting case.

Posted by Rick Hasen at 09:20 AM

Dodd letter on HAVA funding

Electionline.org has posted this letter from Senator Christopher Dodd on adequate funding for voting reform under the Help America Vote Act.

Posted by Rick Hasen at 07:40 AM

"Bush Stable of Big Donors Increases"

The Wall Street Journal offers this report. (Thanks to Steven Sholk for sending this along.) See also this Washington Post report

Posted by Rick Hasen at 07:31 AM

Still waiting to hear from Mickey Kaus

With the preliminary numbers pointing in favor of a large disparity in punch card vote errors, will he retract his criticism of Dr. Brady?
Along these lines, I received the following e-mail from Matt Wall:

    it was my note to a pal of mine at Slate and my comments on my blog that started the thread at Kaus' blog at Slate, I think, and I read your follow-ups on your site. I wanted to give you very anecdotal evidence to supplement the statistical evidence.

    (One has to bear in mind that the very counties that had punch cards were among those more likely to vote against Schwarzenegger. I'm not sure what if anything this says about the results. But I digress)

    In my county, at my polling place, I can personally attest the punch card format was at fault for erroneous voting. I've worked elections in several stats, using lever-machines, optical scanner fill-ins, and good old paper check-off ballots. And now that I'm in California, I arrived at the high technology of 1888, the punch card.

    My precinct was educated, upper middle class to wealthy, native English speakers with only a few exceptions, and we registered only 123 polling-place voted ballots (144 voted absentee!) with the vote-o-matics. We had two dozen spoiled ballots! And those are just the voters who asked! I have to assume there were voters who messed up and either didn't notice or didn't ask (we tell voters if they mess up they can get another ballot, but it's not always clear the message gets across).

    If we had 25 of 123 voters _catch_ their mistakes, then, having all the linguistic and voter skills necessary to presumably successfully register their votes...how many didn't? How many in other counties?

    I personally assisted two voters who were having difficulty trying to cast their votes for Schwarzenegger, one of whom had the punch OVER Schwartzman's name and was asking "this is going to vote for Schwarzenegger, right?" This was an apparently well-spoken thirty-something white woman. (The other one simply had no clue and asked to be shown where to register his vote for Arnold.)

    We rotated assistance duties, and while I did not ask my fellow election board members specifics about names (inappropriate to do so), we did confer at one point about making sure voters were able to find the name of their candidate, and it was clear the other members of our election board had had the same experience with voters being unable to clearly line up the card with the appropriate punch.

    I know it's not rocket science, etc., but it's clear that cognitively asking people to find one name amidst 135 in fairly small type and line it up under plexiglass with a tiny punch tool is bound to produce errors. And again, anecdotally, in my experience this kind of problem did not exist with lever-machines or boxes. (It was also a problem with the optical scanner sheets, but that was in an Ohio election over 20 years ago.)

    In fact, I suggest that were not the local citizen-election officials as diligent as we were (pat self on back) there probably would've been many more Schwartzman votes.

    It's all moot, of course, as you legal types say from time to time, since clearly the effect did not affect the results of this particular election. But the evidence of my own participation to me is quite strong that the punch card machine effect is very real.



Posted by Rick Hasen at 07:19 AM

"Vote early, vote often -- but vote on everything?"

Peter Schrag offers this Sacramento Bee column on the role of the initiative process in future California elections.

Posted by Rick Hasen at 07:14 AM

October 14, 2003

Wishing the Best to Professor Jeff Cooper

Thanks for the wonderful blog. Your final post puts important things in perspective. Good luck.

Posted by Rick Hasen at 01:14 PM

Lawsuit filed in Texas redistricting case

See this A.P. report.

Posted by Rick Hasen at 10:21 AM

"Dean Keeps Options Open on Campaign Funds"

A.P. offers this report.

Posted by Rick Hasen at 09:33 AM

"High Court to Decide Key Issue"

See this editorial from the Hattiesburg American newspaper (Mississippi) on issue ads and the McCain-Feingold decision expected from the Supreme Court.

Posted by Rick Hasen at 09:10 AM

Clarification on FEC "We Lead" PAC vote

Glen Shor of the Campaign Legal Center notes the following regarding this earlier post:

    Actually, the FEC did not approve the OGC draft which raised the obstacle of the 10-day forwarding requirement. The Commissioners disagreed with that approach for a variety of reasons. Rather, they voted to instruct OGC to develop an Advisory Opinion draft – which the Commissioners intend to approve by tally vote – that would essentially permit the proposed plan (including the ability to receive contributions which would not be forwarded within 10 days of receipt).

The original writer of the letter in the last post wrote the following: "Talked to the reporter - evidently the Commissioners voted to overrule the general counsel's Draft Advisory Opinion. While the final AO has yet to be posted, I'm still shocked that the Commission voted this way."

Posted by Rick Hasen at 09:04 AM

Follow-up stories on Texas Re-redistricting

The New York Times story is here.

Posted by Rick Hasen at 07:21 AM

"BCRA Costs Run in Millions"

Roll Call offers this report (paid registration required), looking at legal costs incurred in litigating the BCRA (McCain-Feingold litigation). The newspaper gives a figure of $5 to $10 million. Perhaps most interesting is the report that Ken Starr and Kirkland and Ellis billed the Southeastern Legal Foundation over $400,000 from a July 2001 to July 2002 period, "but SLF representatives told Roll Call that the group’s total legal tab — which includes the fees of both in-house lawyers and fees from Kirkland & Ellis — is closer to the $2 million mark."

Posted by Rick Hasen at 07:16 AM

October 13, 2003

"Harsh campaign penalties scare lawmakers into action"

The Hill offers this report, which begins: "House Republicans led by Rep. Bob Ney (R-Ohio), chairman of the House Administration Committee, are contemplating action against harsh new sentencing guidelines that will take effect at the end of the month for violators of campaign finance law."

Posted by Rick Hasen at 08:34 PM

New election law scholarship

Jim Gardner has published Forcing States to Be Free: The Emerging Constitutional Guarantee of Radical Democracy, 35 Connecticut Law Review 1467 (2003). The article is followed by commentaries by Nate Persily, Burt Neuborne, Rick Pildes, and Jeremy Paul. I have not yet read the exchange, but it promises to be important and interesting.

Peter Francia and Paul S. Herrnson have published The Impact of Public Finance Laws on Fundraising in State Legislative Elections, 31 American Politics Research 520 (2003). According to the abstract, the authors find that "candidates who accepted full public financing spent less time raising money than other candidates, including those who accept partial public financing."

Posted by Rick Hasen at 05:33 PM

More on FEC "We Lead" Decision

Responding to this A.P. report linked in this earlier post, a reader sends along the following via e-mail:

    I'm not picking on the reporter (I totally respect any reporter who can cover campaign finance) but I think that whoever fed her this story was deluding her.
    Another lesson that you can't always go by press accounts alone when dealing with campaign finance. I went to the back-end of the FEC's website to read the actual Draft Advisory Opinion to see how they possibly could've ruled in "WE LEAD's" favor.

    I thought this was a weird ruling by the FEC (as it violated all rationale in regards to current regulations) and, as it turns out, the FEC did not stray from current regulations or past precedent.

    Yes, the FEC said the group could transmit money that donors had earmarked for "the presumptive Democratic Presidential nominee" to the actual nominee.

    HOWEVER, this was the easy part since the FEC has previously ruled that such language like "the presumptive Democratic Presidential nominee" does refer to a "clearly identified candidate." To understand that this Advisory Opinion was actually not favorable to "WE LEAD", one has to look at what the committee actually had requested in their Advisory Opinion Request -- this is why I was shocked upon seeing the AP press story titled "FEC Backs Group's Campaign Money Plan."

    "WE LEADs" plan was to begin collecting contributions immediately earmarked for "the presumptive Democratic Presidential nominee" and forward them to this candidate as soon as it became apparent that he/she had accumulated enough delegates to ensure his/her nomination. The appeal to donors, I assume, would be that Democratic donors could make a financial contribution to the eventual nominee now and "WE LEAD" would be able to say "we have $xxx,xxxx to give to the nominee as soon as he/she is known."

    Problem: This would totally go against the current FEC regulations that stipulate all earmarked contributions must be transmitted to the candidate's committee within 10 days (30 days if under $50) of the receipt of the earmarked contribution.

    How the FEC (predictably) ruled: That "WE LEAD" could only forward those earmarked contributions to the candidate "WE LEAD" had received within the previous 10 days. Considering a nominee will most likely not receive enough delegates to constitute a majority until the late spring of 2004 at the earliest, and the likelihood that at that point most donors would soon give directly to the candidate instead of via a conduit, "WE LEAD's" plan is ultimately squashed.

    The committee (which has not yet raised any money) will most likely close.


Thanks for writing.

Posted by Rick Hasen at 04:34 PM

Judicial elections in Pennsylvania

See this A.P. report. Link via How Appealing

Barnes and Noble.com now has my book in stock at a 20% discount

You can find the online bookseller here. I'll post another notice when Amazon.com has the book in stock.

You can also find more information about the book, The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore, at this link to NYU Press.

Posted by Rick Hasen at 10:05 AM

The controversy over the security of touch screen voting continues

See this report in the British newspaper, The Independent. Thanks to David Ettinger for the pointer.
Update: The newspaper appears to have taken the article down, which had an October 14 publication date. But you can still find the article here.

Catching Up Department

I just came across this Bruce Cain online Q&A dated October 8 from the Washington Post Online.

Posted by Rick Hasen at 09:00 AM

"Learning from the California Recall Experience; What the Unprecedented Election Tells Us About our Laws Governing Politics"

My Findlaw column on this topic is here.

Posted by Rick Hasen at 07:29 AM

"After Bitter Fight, Texas Redraws Congressional Districts"

See this New York Times report. See also this A.P. report.

"New voting devices can't come too fast"

Daniel Borenstein offers this column in the Contra Costa Times.

Posted by Rick Hasen at 07:18 AM

"3 groups use $1M on TV ads; 'Soft money' effort attempts to sway voters in Mississippi on Nov. 4"

The Clarion-Ledger (Jackson, Mississippi) offers this report.

Posted by Rick Hasen at 07:15 AM

October 11, 2003

Texas GOP analyst: Redistricting plan "should assure that Republicans keep the House no matter the national mood"

Be sure not to miss this Washington Post report.

Posted by Rick Hasen at 08:27 AM

October 10, 2003

More on punch card undervotes in the recall election

Mickey Kaus comes down hard here on Henry Brady's most recent statistics regarding the extent of unintentional undervotes caused by punch cards, but other preliminary analyses have reached the same conclusion:

(1) Michael McDonald's updated turnout analysis, which notes, among other things: "Interestingly, even though voters who voted by touchscreen and punchcard were very similar in their preference for recalling Davis, 1.4% of touchscreen voters did not vote in the recall while 7.1% of punchcard (and 5.0% of optical scan) voters did not have a recorded vote."

(2) Steven Hertzberg's preliminary analysis linked here yesterday, which had a 7.7% rate for punch card undervotes compared to a 2.3% rate for non-punch card undervotes.

(3) Mark Blumenthal's analysis (passed on to me by Mickey Kaus), which has the advantage (like McDonald) of incorporating exit poll data. Unlike McDonald, Blumenthal has exit poll data that breaks it down by voting system.
Blumenthal, responding to Kaus's criticism of Brady, wrote to Joe Lenski to get more exit poll data. Here is Blumenthal's analysis:

    According to the totals posted on the Secretary of State website, 4.6% of the ballots cast (384,976 of 8,374,681) lacked a valid vote on the recall question. According to the exit poll, 2.6% of the those voting intended to skip the recall question. This the exit poll suggest that about 2% of the ballots cast were "lost." The exit poll also allows us to look at this difference by type of voting equipment. As the table shows, punch cards accounted for virtually all of those "lost" (I got the percentages of missing votes from the AP story):
    Percentages
    Punch card
    Touch Screen
    Optical scan
    a) Actual missing votes
    6.3%
    1.5%
    2.7%
    b) Intended non-votes (exit poll)
    2.9%
    1.4%
    2.5%
    Estimate of "missing vote" (a minus b)
    3.4%
    0.1%
    0.2%



    So where voters used punch cards, the error rate is 3.4%, where voters used touch screen or optical scan it was less than 0.2%.

    Multiply the number of missing votes cast in punch-card counties (297,775 according to AP) by 3.4%, and you get an estimate of about 160,000 lost votes. A little less than Brady's estimate, but not much.

    Some other relevant findings:

    The exit poll also asked its respondents about problems experienced with voting equipment. Roughly one in ten had either "serious" (2%) or "minor" (7%) problems. As a whole, this group voted 60% to 40% against the recall. Given this finding and the size of the group, Lenski concludes, lost votes from this group "may have slightly increased the recall's reported margin of victory but in no way affected the overall outcome."

    Finally, note that according to the exit poll, Bustamante's support was 36% among those using punchcards, 34% among those using other methods.


I'll have more on what these numbers teach us, and other lessons for election law from the recall, in a Findlaw column out Monday.

Posted by Rick Hasen at 08:34 PM

Schwarzman effect: human error or machine error

Garry Young offers these thoughtful comments, concluding that most of the Schwarzman votes can be attributed to name error rather than punch card error.

Posted by Rick Hasen at 11:35 AM

L.A. Times recall campaign finance recap

See here.

Posted by Rick Hasen at 10:37 AM

"Texas GOP Makes Another Redistricting Bid: Democrats Promise to Fight Proposal"

The Washington Post offers this report.

Posted by Rick Hasen at 10:31 AM

Preliminary statistics indicate higher error for punch cards in recall race

See this preliminary analysis by Steven Hertzberg of Votewatch, a new non-partisan vote monitoring group. According to Hertzberg:

    A preliminary analysis of the election returns shows that of the ballots cast, 42.5% were on Votomatic and Pollstar punch card machines. Our preliminary calculations show that Question #1 was either not marked by the voter or recorded by the equipment in 7.7% of the ballots cast on these machines. The average "not counted/marked" rate for the remaining voting systems is 2.3%, with the next highest rate being the Optech optical scanner at 4.35%."

Of course, a full study will have to control for other factors. For example, voters in counties with punch cards might have been more or less likely for other reasons to have abstained on question 1. But the preliminary figures raise reasons for further concern over the use of such machines.
UPDATE: See also this A.P. report.

Posted by Rick Hasen at 10:28 AM

"Deal to End Punch Card Voting:Change in Ballot Seen by 2006"

The Chicago Tribune offers this report (registration required) on a settlement of the Illinois punch card litigation. Readers of this blog will recall that earlier in the litigation, a federal district court held that the use of punch card voting in some parts of Illinois but not others constituted an equal protection violation under Bush v. Gore. That case, Black v. McGuffage, is described on page 9 of the 2003 Election Law casebook supplement.

Of course, what this settlement means is that punch cards will be used in the 2004 presidential election in Illinois, and the settlement would make it difficult for others to later sue to enjoin the use of punch cards in that election.

Posted by Rick Hasen at 10:23 AM

October 09, 2003

"FEC Backs Group's Campaign Money Plan"

A.P. offers this report, which begins: "The Federal Election Commission on Thursday backed a group's plan to gather donations for the Democratic presidential nominee months before the candidate is picked, turning aside concerns raised by commission lawyers. The political action committee, known as WE LEAD, would be able to give an unlimited total to the Democratic nominee-to-be instead of facing the $5,000-per-candidate limit applied to other PACs. Each individual sending a check to the group earmarked for the 'presumptive nominee' could give up to $2,000."

Posted by Rick Hasen at 05:56 PM

New ballot access case

The First Circuit has decided Perez-Guzman v. Gracia. The opinion strikes down a provision of Puerto Rico law requiring that each person signing a petition endorsing a new political party wishing access to the ballot must do so with a notarized signature. The court explained: "In Puerto Rico, organizations that seek to be recognized as political parties must gather roughly 100,000 endorsing petitions, each signed by a registered voter and sworn to before a notary public. Since only a lawyer can become a notary in Puerto Rico, there are fewer than 8,000 notaries in the entire commonwealth — and notarial services do not come cheap." The court rejected the argument that the law could be justified as a means of preventing fraud.

Thanks to Bill McGeveran for the pointer.

Posted by Rick Hasen at 04:51 PM

"176,000 bad punch-card ballots, ACLU says; Group Not Planning to Sue Over Lost Votes"

The San Francisco Chronicle offers this report. If I can find a link to Henry Brady's study (which I have not seen), I will pass it along.

Posted by Rick Hasen at 11:54 AM

Punch cards and votes for Schwartzman

Mickey Kaus writes here:

    The Schwartzman Test: A man named George B. Schwartzman finished a suprising ninth in the California recall race with 10.945 votes, right behind Gary Coleman. It's not hard to figure out why. Blogger Matt Wall (a judge on a local election board) says this shows "the voting system has systematic error built into it"--big enough, he notes, to have decided Florida in 2000. ... But was this an error that could be fixed by any kind of voting system? Did voters try vote for Schwarzenegger but accidentally vote for Schwartzman because of a confusing ballot? Or did they not remember Schwarzenegger's name and actually vote for the name they intended (misguidedly) to vote for? The second type of error can't be blamed on punch cards, or ballot design, etc. ... The interesting study to make--attention, Rick Hasen--would be a comparison of Schwartzman's showing in areas with different voting systems. It's pretty clear that a higher Schwartzman vote means a higher error rate. If he did better in punch card districts, that would be evidence against punch cards. ...
I'm not able to do such a study--at least not in the near term--but would be interested in hearing from anyone who looks into this issue.
Posted by Rick Hasen at 08:41 AM

Transition timeline

See this Contra Costa Times report.

Posted by Rick Hasen at 08:33 AM

"Some Democrats say maybe -- but not now -- to another recall effort"

See this Sacramento Bee report.

Posted by Rick Hasen at 08:31 AM

October 08, 2003

"Political cases on U.S. Supreme Court docket"

The Pittsburgh Post-Gazette offers this report.

Posted by Rick Hasen at 07:35 PM

"Texas Reaches Redistricting Agreement"

A.P. offers this report.

Posted by Rick Hasen at 03:28 PM

"Joint primary ballots OK'd by judge"

The Anchorage Daily News offers this report, which begins: "A Superior Court judge has thrown out a state law requiring separate primary ballots for each of Alaska's political parties. Judge Mark Rindner said the 2001 law that bars parties from listing their candidates together on a joint ballot unnecessarily restricts the right of association for parties and voters. Political parties that want to close their primaries are free to do so, but parties that don't want to close their primaries should not be forced to, he wrote Thursday in a summary judgment against the state."

Posted by Rick Hasen at 12:48 PM

Indiana ballot dispute and "The A Team"

The Indianapolis Star offers this report, which begins: " Democrats won nearly every provision of their lawsuit over Marion County’s controversial election ballot today — a decision that will force county officials to redesign and print an entirely new voting card in 27 days. Senior Judge James Harris ruled that for the Nov. 4 general election, candidates must be grouped by party rather than by office — the opposite of a ballot design that had been proposed and used in previous elections. The court also struck down a new Republican Party symbol that carried the words 'The A Team' as part of the logo." Thanks to Ed Feigenbaum for the pointer.

Posted by Rick Hasen at 12:19 PM

"The Benefits of Campaign Spending"

John Coleman has written this CATO Institute briefing paper. Here's the summary:

    Critics of American politics often say that spending on electoral campaigns harms our democracy. They charge that the money goes for cynical, negative, and misleading advertisements that alienate the public from politics and elections.

    Political scientists have collected and analyzed data on the connection between campaign spending and civic life. The data bear on several questions at issue in campaign finance debates: Does campaign spending reduce public trust? Does it reduce levels of citizen involvement in or attention to campaigns? Does it lower citizens' knowledge of information relevant to their votes? Who benefits from campaign spending?

    Studies indicate that campaign spending does not diminish trust, efficacy, and involvement, contrary to what critics charge. Moreover, spending increases public knowledge of the candidates, across essentially all groups in the population. Less spending on campaigns is not likely to increase public trust, involvement, or attention. Implicit or explicit spending limits reduce public knowledge during campaigns. Getting more money into campaigns should, on the whole, be beneficial to American democracy.



Posted by Rick Hasen at 12:06 PM

"Schwarzenegger's Own $8 Million Went to Fund Recall Campaign"

The Wall Street Journal offers this report. Thanks to Steven Sholk for the pointer.

Posted by Rick Hasen at 12:03 PM

The law governing a recall of Gov.-Elect Schwarzenegger

Already there is talk of a recall of Gov-elect Schwarzenegger. I have received a number of questions about this possibility over the last few days. It seems like an absurd political strategy to me, but there seems no impediment to such an action in California law. While Elections Code section 11007(a) prevents commencing recall proceedings against local officials until they have been in office for at least 90 days, Article II of the California Constitution provides no such limit against state officials.

The other question I have been asked is whether the signature requirement would be 12% of the 2002 gubernatorial turnout or yesterday's turnout. Article II, Section 14 (b) provides in pertinent part that "A petition to recall a statewide officer must be signed by electors equal in number to 12 percent of the last vote for the office..." Arguably, the last vote for the office was yesterday, though there may be caselaw to the contrary that I have not researched.

UPDATE: Richard Winger of Ballot Access News sends along the following via e-mail regarding my last point: "Last week, Bill Wood, counsel to the Secretary of State, with a great deal of confidence in his voice, told me on the phone that Shelley had decided that this is not a 'gubernatorial election' for the purpose of statewide initiatives and new party qualification. But it does apply as a base for any future gubernatorial recall."

Wood may have had a great deal of confidence, but without any analysis, I wonder if the distinction would hold up to scrutiny.

Posted by Rick Hasen at 07:50 AM

New Election Law articles

FEC Commissioner Brad Smith published "Campaign Finance Reform: Searching for Corruption in All the Wrong Places," 2002-2003 Cato Supreme Court Review 187. Steven Sholk published "A Guide to New York Corporate Political Action Committees" in the October 2003 issue of the Exempt Organization Tax Review. Brian Kalt has posted Count Every Vote?: Some Thoughts on Al Gore in Florida and Optimal Recount Strategy on SSRN (forthcoming in THE FLORIDA PRESIDENTIAL RECOUNT CONTROVERSY AND ELECTION REFORM IN THE UNITED STATES, Bernard Grofman and Henry Brady, eds., Cambridge University Press, 2004). I have posted a working paper on SSRN, Congressional Power to Reenact Section 5 of the Voting Rights Act: The Evidentiary Quandary.
If you have recently published an article on election law that I have not already noted on my blog, please drop me a note and I'll give the citation. Even better, if you have a web link to the full text, provide that too.

Posted by Rick Hasen at 07:37 AM

"Few problems reported at polling places"

The San Jose Mercury News offers this report. See also this Sacramento Bee report and this Los Angeles Times report.

Posted by Rick Hasen at 07:28 AM

"Clark May Have Broken Law in Paid Speeches"

The Washington Post offers this report, which begins: "Retired Gen. Wesley K. Clark may have violated federal election laws by discussing his presidential campaign during recent paid appearances, according to campaign finance experts." Thanks to the reader for pointing this out.

Posted by Rick Hasen at 07:22 AM

Was California's Recall Turnout Unprecedented?

Don't miss Michael McDonald's analysis.

Posted by Rick Hasen at 07:17 AM

Lessons learned from the California Recall Experience

I'm working on an oped on this topic, and I will link to it after it has been published.

Posted by Rick Hasen at 07:01 AM

October 07, 2003

The Evening May End Early

See this FOXNews exit polling, which, if accurate, spells bad news for Davis and good news for Schwarzenegger.

Posted by Rick Hasen at 04:29 PM

Post-election litigation

I remain convinced that post election litigation is extremely unlikely to change the results of the recall election unless (1) the race is very close or (2) there are reports of serious irregularities/problems at the polls or with the counting of votes. The Recorder offers a subscription-only article, "Ready for Action," which paid subscribers can access here. The article quotes one of Davis's lawyers: "'With all the players, I would be astounded if there weren't some kind of litigation,' said Robin Johansen of Remcho, Johansen & Purcell." Litigation? maybe. Successful litigation? Unlikely unless one of the two conditions I list occurs.

Posted by Rick Hasen at 03:01 PM

NPR Report on Recall Voting Issues

Click here. One reader notes that the NPR report states that Orange County elections officials will be holding their tallies until they have official results, perhaps on Wednesday. The reader suggests nefarious purposes, though county officials say they will wait because they are using a new voting system and want to make sure they produce accurate results.

Posted by Rick Hasen at 07:32 AM

"Punch Card System Sees Its Last Election"

Knight-Ridder offers this report, which of course refers only to California elections.

Posted by Rick Hasen at 07:21 AM

"I expect we will know the outcome, probably, within a day or two"

The words of California Secretary of State Kevin Shelley in this Los Angeles Times article.

Posted by Rick Hasen at 07:15 AM

"Daniel Weintraub: Facts and fiction about the California recall election"

Agree with his opinions or not, Daniel Weintraub has offered the best political coverage of the recall at his California Insider blog. Here is his final Sacramento Bee column before the recall.

Posted by Rick Hasen at 07:13 AM

Polls are open

They will remain open until 8 pm California time. Expect the first reports after 8 pm to reflect absentee ballots that were cast relatively early in the voting process, and therefore not necessarily representative of the later ballots that will be counted. The Sacramento Bee offers this useful guide to televised recall coverage.

Posted by Rick Hasen at 07:03 AM

October 06, 2003

The Supreme Court and Election Law: Court Intervention in the Political Process Continues

Today's Washington Post preview of the Supreme Court's upcoming term quotes the national legal director of the ACLU stating "potentially the big issue of the term is going to be the Supreme Court's impact on the political system." This term, the Court will decide the McCain-Feingold case and a potentially very important case on partisan gerrymandering, Veith v. Jubelirer.

This term is not much different from other terms over the last 40 years at the Supreme Court. I offer a critical examination of the history of the Supreme Court's intervention in the political process in The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore. The book's scheduled publication date is November 1, but NYU Press has just posted the book's Table of Contents and Introduction. The introduction includes the following statistics:

    In the period 1901–1960, the Court decided an average of 10.3 election law cases per decade with a written opinion. During the period 1961–2000, that number jumped to 60 per decade. Figure I-1 shows the trend. The numbers are equally dramatic in Figure I-2, which displays the percentage of election law cases on the Court’s docket. In the 1901–1960 period, on average only 0.7 percent of cases the Court decided by written opinion were election law cases. During the 1961–2000 period, that percentage increased seven and one-half times to an average 5.3 percent of cases.

(footnote omitted)

Posted by Rick Hasen at 11:13 PM

Will Absentee and Provisional Ballots Delay the Results of the Recall Election?

The New York Times Tuesday offers Officials Warn of Absentee Vote Factor in Recall Election. This article echoes the concerns I expressed in this September 29 post. Monday's Times featured Voters Face Intricate Ballot and, Indeed, Chads as well as an interactive graphic, Inside the Recall: A Look at the Voting Process.

Posted by Rick Hasen at 11:01 PM

"Wanted: A Legible Voting Ballot;Why it's time to redesign the ballot design process."

Jessie Scanlon offers this interesting piece (along with proposed ballot designs) at Slate. Thanks to a number of readers for directing me to this piece.

Posted by Rick Hasen at 10:34 PM

October 05, 2003

Into the Final Stretch: The Secretary of State's Failure to Educate the California Public on How the Recall Works

One of the arguments of the Secretary of State in opposing the delay of the recall in the ACLU punch card suit (disclosure: I filed a brief supporting the ACLU in this case) was that the state would undertake a significant education effort about how to cast a valid vote using punch card ballots.

As a Los Angeles resident, I have not seen any evidence of this effort so far. But there is an even greater failure of the Secretary of State: failure to adequately educate the public on how the recall actually works. Consider this evidence from this San Jose Mercury News poll:

    Despite the intense media coverage of the recall, there is still significant confusion about the ballot, with 11 percent of voters saying they did not know they could vote against the recall and still cast a ballot for a replacement candidate.

I have been speaking to a lot of groups and individuals about the recall in the last few months, and my anecdotal experience matches this poll--in fact, I think the figure of those confused about at least one central aspect of the recall process is likely higher. As late as yesterday, I had a conversation with someone with a graduate degree who had been following the recall fairly closely but who did not understand the two-part nature of the ballot and how the parts are related.

Given that many people do not read the printed ballot pamphlet, the state should have spend money getting the message out in other ways, including television, so that voters know what to expect on Tuesday.

Posted by Rick Hasen at 07:37 AM

"Teen Does More than Talk for Free Speech"

See this profile of Emily Echols, a 14-year-0ld plainiff in the McCain-Feingold suit challenging the ban on campaign contributions by minors.

Posted by Rick Hasen at 07:24 AM

"Remap Battle May Delay Primary*Republican officials in Texas can't agree on proposals. The state could miss the chance to pick a Democratic presidential candidate"

The Los Angeles Times offers this report.

Posted by Rick Hasen at 07:22 AM

"The Recall Law of Unintended Consequences"

Joshua Spivak offers this oped in the Washington Post.

Posted by Rick Hasen at 07:20 AM

October 03, 2003

Useful recall election day primer

See this California Voter Foundation newsletter.

Posted by Rick Hasen at 10:19 PM

"Touch Screen Voters Set Record"

The Los Angeles Times has just posted this report. Although the report is about early touch screen voting in Los Angeles County, perhaps more significant is this statistic: "County election officials have sent out 531,000 absentee ballots and have received 310,00 in return. Statewide, more than 1.6 million of the 3.1 million absentee ballots issued statewide have been sent back."
So anyone trying to figure out how the last minute news about Arnold Schwarzenegger may affect the electoral outcome should not forget that a significant number of voters have already cast their ballots without access to that news.

Posted by Rick Hasen at 05:21 PM

"Valid Ballot: Panel Exploited Precedent to Rationalize Postponement of Recall Vote"

Dan Lowenstein's Los Angeles Daily Journal oped on the Ninth Circuit's recall punch card case decision is now available here. His article sets forth a different viewpoint than the one I offered in this oped in the Daily Journal earlier this week.

Posted by Rick Hasen at 03:48 PM

The Futuility of a Bustamante Withdrawal?

In this Wednesday post, I stated that it might be rational for Democrats to encourage Bustamante to leave the race (though I offered some counterarguments to that position). Some Democrats have now started encouraging Bustamante to do just that. (See here.) If today's Field Poll is to be believed, such a move may not be enough help Davis:

    The laws governing recall elections specify that the name of the officeholder who is the object of the recall cannot appear on the election ballot as a possible replacement candidate. Nevertheless, there has been some speculation that if Davis had been allowed to be on the ballot and Bustamante had not entered the race, the Governor might emerge the winner, particularly in a crowded field of candidates.

    To test this hypothesis, this question was included in the current survey: Suppose Governor Davis had been allowed to run as a candidate in the replacement election and that Lt. Governor Bustamante had not run. If all other candidates were the same, who would you have voted for?”

    In the final polling period Schwarzenegger led Davis 36% to 30% in this situation. In the early September 25-28 polling period Davis appeared to have a slim lead over the actor (33% to 30%) in this hypothetical scenario.

Given these numbers, it is hard to see the Bustamante withdrawal favoring Davis, where the logic is that once voters clearly see it is a choice between Davis and Schwarzenegger, they will choose Davis. (Link to Field Poll via Dan Weintraub.)

Posted by Rick Hasen at 07:40 AM

"Succession appeal denied"

The Sacramento Bee offers this report, which begins: "In a brief decision issued Thursday, the 9th U.S. Circuit Court of Appeals turned down an argument that only Lt. Gov. Cruz Bustamante can succeed Gov. Gray Davis if the governor is recalled." The article notes that the same three-judge panel that decided the earlier punch card suit decided this suit. (Note that this panel is one of two panels set up by the court to hear emergency motions during the month of September.)
I know nothing about who brought this litigation, and I have not seen this opinion. If anyone has information on this case, please let me know.

Posted by Rick Hasen at 07:30 AM

"FPPC Urged to Act on Bustamante"

The Sacramento Bee offers this report.

Posted by Rick Hasen at 07:26 AM

"Judge OKs Schwarzenegger's Use of $4.5-Million Loan"

The Los Angeles Times offers this report.

Posted by Rick Hasen at 07:24 AM

"Silent PACS Boost GOP Coffers"

The Lawrence (Kansas) Journal-World offers this report.

Posted by Rick Hasen at 07:19 AM

October 02, 2003

Judge Denies TRO Request in Schwarzenegger campaign finance case

See this A.P. report.

Posted by Rick Hasen at 02:51 PM

Indiana election law controversy

The Northwest Indiana News offers Appeals court dismisses call for special election; Pabey suffers another setback in legal fight to oust E.C. Mayor Pastrick. (Link via J.J. Gass.)

Posted by Rick Hasen at 10:14 AM

The "Do Not Call Registry" and Election-Related Calls

One issue I have been following from the sidelines is the current dispute over the constitutionality of the Federal Trade Commission's Do-Not-Call registry, which prevents those engaging in commercial telemarketing calls from making them to those on the list except in certain circumstances. The law has an exception for calls by charitable and political organizations, and a lower court has held that the law violates the First Amendment because it singles out some speech for protection but not others. It looks like a law professor's ideal hypothetical to test the limits of the commercial speech doctrine (i.e., to what extent may the government regulate commercial speech more heavily, consistent with the First Amendment).

I have been hearing reports (and received an e-mail this morning) that one possible way around the First Amendment problem is to remove the exemption for charitable and political calls, and allow callers to "opt in" to receiving such calls. That appears to eliminate one First Amendment problem---it does not single out commercial speech for special treatment, but does it create another? Can the government tell those who wish to engage in election-related (or perhaps simply political) speech that they may not call people who say in advance that they don't want to be contacted? I hope Eugene Volokh will chime in on this question.

UPDATE: Eugene responds via e-mail:

    I think that if the government had a blanket prohibition on unsolicited calls, for political or other reasons, to anyone who has opted out (perhaps with an exception for people with whom you have a preexisting business or social relationship), this would be permissible. See Rowan v. Post Office Dep't (upholding a law that let householders block future mail from particular senders); Martin v. City of Struthers (acknowledging that householders could put up "Do Not Soliciting" signs, even as to political solicitors, that the city could then enforce).

UPDATE II Eugene has posted more extensive comments here.

Posted by Rick Hasen at 07:27 AM

"Updated Voting System on Its Way"

The Ukiah Daily Journal offers this report, which begins: "Mendocino County voters will use the familiar punch-card at the Oct. 7 recall election but come November, the Diebold Election System will replace Votomatic punch-card voting machines, which have been decertified for use in California."

Posted by Rick Hasen at 07:18 AM

"Convention Perks Await DNC Fundraisers"

The Boston Globe offers this report.

Posted by Rick Hasen at 07:12 AM

Lawsuit by Bustamante against Schwarzenegger for alleged campaign finance violations

The Sacramento Bee offers Campaign Loans are Targeted, which begins: "Supporters of Lt. Gov. Cruz Bustamante plan to file suit today alleging Arnold Schwarzenegger violated state laws by taking out $4 million in loans for his gubernatorial campaign."

Posted by Rick Hasen at 07:11 AM

"Recall still could face court challenges, after the election"

The Contra Costa Times offers this report.

Posted by Rick Hasen at 07:08 AM

October 01, 2003

More on fund for post-election recall litigation

See this New York Times article.

Posted by Rick Hasen at 03:47 PM

The Media Exemption and the FEC

In this earlier post, I discussed the media exemption and how this plays into the current debate over the constitutionality of the McCain-Feingold campaign finance law.

Now comes word out of the FEC (via BNA's Money and Politics report) that the media exemption may get expanded as a way around the ban on corporate contributions. BNA reports: "The FEC voted to drop a complaint that Wal-Mart, the nation's largest retailer, made an illegal contribution worth millions of dollars to the Dole campaign by prominently featuring Dole in a company-sponsored magazine distributed to Wal-Mart customers a few weeks before last November's election. FEC Republicans argued that the magazine was covered by the "press exemption" contained in campaign finance law." BNA also reports that commissioner Scott Thomas had filed a written statement opposing this decision. It is possible that this statement is somewhere on the Federal Election Commission's awful website, but if it is, I could not find it. I'll post a link later if someone can locate the statement on the web.

UPDATE: The Campaign Legal Center has posted some commentary and the relevant documents here.

UPDATE 2 Marty Lederman here offers some very persuasive reasons why the Smith plurality opinion could open up a gaping loophole in campaign finance laws.


Posted by Rick Hasen at 11:15 AM

Post-mortem on Ninth Circuit's en banc decision

I have written an oped for the Los Angeles Daily Journal, that you can also access here, entitled "LOST VOTES: 'Shelley' Holding Will Mean Ballot-Counting Disparity, But Could Have Been Worse." Tomorrow, Dan Lowenstein will have a Daily Journal oped on the same topic (but no doubt with a different viewpoint). I'll link to that when it gets posted on the web.

Posted by Rick Hasen at 10:17 AM

135 candidates, Duverger's Law, and Rationality of McClintock's and Bustamante's candidacies

Because of an early decision of the Secretary of State, it has been very easy for recall challengers to qualify for the ballot. All one needs is 65 signatures and $3,500. The Secretary's decision was based on a dubious interpretation of the Elections Code, but no matter---the California Supreme Court refused to get involved in the question, and eventually we ended up with 135 candidates on the ballot.

Has this large number of candidates mattered? As a matter of substance, I think the answer is no. Political scientists have long noted that first-past-the post voting rules tend to lead to the emergence of two parties. This idea is named "Duverger's Law," after a French political scientist Maurice Duverger, though the idea predates Duverger. A similar dynamic is occurring here. At least on Part 2 of the ballot, the dynamic has been for people to coalesce around just a few candidates with a chance of winning. This explains why some candidates, most recently Arianna Huffington, have effectively dropped out of the race. (I say "effectively" because these candidates' names have remained on the ballot.)

The dynamic is a bit thrown off here by the presence of Part 1 of the ballot, asking whether Davis should be recalled. If we had strong parties intent on maximizing the chances of holding or capturing the governor's office, we might predict two things that should have happened (or should happen soon) but did not happen. (1) McClintock should withdraw, so that Republicans have a stronger chance of winning in Part 2 and (2) Bustamante should withdraw, so that Democrats have a stronger chance of winning Part 1.

What explains McClintock's and Bustamante's continued presence in the race? It might be that McClintock is simply ideologically committed to staying in. Or it might be something else. If Schwarzenegger in the polls looks like he is pulling away from Bustamante, more Democratic voters and independent voters who prefer Davis to Schwarzenegger might change their vote on Part 1. So keeping McClintock in the race might be a rational Republican strategy.

As for Bustamante, the latest Los Angeles Times poll shows an 8 point advantage for Schwarzenegger over Bustamante. Maybe internal models of turnout (we don't really know who is going to turn out to vote) show that lead considerably closer. Maybe Democrats are going to use payments to get the vote out in reliably Democratic areas as they have in the past. Or maybe Bustamante simply does not want to do Davis any favors, and the Democratic party in California is not strong enough to force him to do so.

Having 135 candidates on the ballot has not seemed to affect the ability to hold reasonably informative debates either. Where the 135 candidates matter is on the ballot itself, especially in conjunction with California's rules on randomization and rotation. Candidate names are listed in random (not alphabetical) order, and randomized across assembly districts. So a candidate cannot even campaign with "Vote # 88." The randomization is done because of a perceived ballot order advantage of being first on the ballot. I'm critical of some of the social science on this effect, and working with others on looking at this question. It will make balloting slower on election day, which may raise other problems as well.

Posted by Rick Hasen at 10:11 AM

"Loans Loophole Under Fire*Schwarzenegger says he can seek donations to recoup $4.5 million he has given to his efforts"

The Los Angeles Times offers this report, on the latest campaign finance controversy to hit the recall.

Posted by Rick Hasen at 08:05 AM

More speculation on post-election recall challenges

See this Sacramento Bee report. As noted here and here, the problems will arise if there is a close election on parts 1 or 2 of the recall, or, as the Bee article correctly adds, if there are problems at polling places, such as qualified voters being turned away.

Posted by Rick Hasen at 07:25 AM

"O'Connor's Special Role"

David Broder offers this Washington Post column, which mentions Justice O'Connor's potential pivotal role in the McCain-Feingold litigation.

Posted by Rick Hasen at 07:18 AM

New Report on the Role of State Parties in Federal Elections

The Institute on State Money in Politics has released this report. Here is how the executive summary begins:

    State political parties have increasingly taken on a more active -- yet less visible -- role of supporting the activities and agendas of their national counterparts, serving as a conduit and clearinghouse for millions of dollars in contributions. And if history is a harbinger of things to come, state party committees could be pivotal to the flow of money into the federal political system in the future, whether the Bipartisan Campaign Reform Act (BCRA) survives legal challenges or not.
    While the BCRA ban on soft money closes one fund-raising door at the federal level, 50 other doors remain wide open in the states. Those doors lead to a financial arena governed by 50 different sets of laws and regulations, many of which are as loose as the federal campaign-finance law was before BCRA.
    A 13-state study by the Institute on Money in State Politics details the financial impact state party committees may feel should the federal soft-money loophole remain closed. The Institute examined the soft money raised and spent by state-level party committees in the 1998, 2000 and 2002 election cycles and documented ways in which the state parties have been used to circumvent federal spending regulations.
    The study found that 61 state and legislative party committees raised $917.5 million in soft money over the six-year period. The six national Republican and Democratic party committees funneled more than $280 million in "soft money" into state-party activities, representing 30 percent of the money these committees raised. Under BCRA, national committees are now prohibited from raising those funds. The study found that two activities in particular -- transfers and trades -- allowed the national parties to conserve or gain "hard money," the funds that are raised under federal contribution limits and can be used for any purpose, including supporting federal candidates. Soft money, raised outside the limits, could only be used for party-building activities, including so-called issue advertisements that don't directly support or oppose a candidate.

The A.P. offers this report on the study.

Posted by Rick Hasen at 07:15 AM

"Officials Slam Proposed FEC Rules"

The Hill offers this report.

Posted by Rick Hasen at 07:08 AM

Schotland on Shrink Missouri and BCRA

Roy Schotland's article referenced the other day has now been posted for nonsubscribers here at BNA's Money and Politics Report.

Posted by Rick Hasen at 06:43 AM

Term limits and the recall

David Ettinger writes:

    If Davis is recalled, can his successor stand for reelection in both 2006 and 2010, or is he or she termed out after winning in 2006? Article V, § 2, of the California Constitution provides in part, "No Governor may serve more than 2 terms." Does finishing Davis's term constitute "serv[ing] [a] term[]" under the Constitution? I suppose so, but things would be less ambiguous if the California Constitution used the 22nd amendment's phraseology: "No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once."

    The state limitation on "serv[ing]" more than two terms, rather than a prohibition against being "elected" more than twice, raises an interesting question. If finishing Davis's term counts towards the two-term limit, does it count as a full term or only 3/4 of a term? If the latter, could Davis's successor be reelected in 2010 (i.e., elected governor a third time), but then be limited to serving only the first year of the term so as not to serve more than two terms?

Excellent questions that I have not explored. If others have researched the answers, send me an e-mail message.

UPDATE: Fred Woocher offers his analysis of these questions here


Posted by Rick Hasen at 06:06 AM

Welcome to this Blog's New Address

Be sure to change your bookmark for this page to point to:
http://electionlawblog.org

Why the change? Blogger and Blogspot were a great way to get started blogging, but the sites have proven too unreliable. Thanks to Jim Kieley, Brian Wold, and other folks in Loyola Law School's Instructional Technology Department, I have been able to make the switch to a new server and to the Moveable Type software. The new software seems great, though it lacks a spellcheck, so I need to be on guard more than ever for typos.

When I started this blog back in February, I never dreamed that a blog covering my arcane subject matter would have gone well over 100,000 page views ever, much less that it would have done so in the less than six months since this blog started. I suppose this is less a credit to the content of the blog than to the great public interest in the McCain-Feingold litigation and the California recall. In any case, I hope you wil keep reading even after these controversies end.

Posted by Rick Hasen at 05:52 AM