Giuliani fundraiser gave big bucks to state ballot measure"

The San Francisco Chronicle offers this update, which begins: "A major New York fundraiser for GOP presidential candidate Rudy Giuliani has been revealed as the money man behind a proposed ballot measure that would have changed California's 'winner take all' electoral college system - and likely benefited Republicans. Paul Singer, a billionaire hedge fund executive and Giuliani policy adviser, acknowledged his role to the New York Daily News on Friday just a day after GOP organizers in California said they were folding their effort to collect signatures for the group called Californians for Equal Representation."

Comments on FEC Electioneering Communications Rulemaking

Richard Briffault and I have filed these comments with the FEC in its rulemaking following Wisconsin Right to Life. Richard and I confine ourselves to the question of whether the "as applied" exemption the FEC is crafting should apply to disclosure rules. We give five reasons it should not.

"GOP Says They'll Continue Voter Suppression Tactics"

Alternet offers this report.

"Little Quality Control on Poll Worker Training Across States"

That's the lead story in this week's Electionline newsletter.

James Madison Center Files Comments in WRTL Rulemaking; Among other Things Jim Bopp's Center Argues there Should Be No Disclosure by Anyone Running Ads Entitled to As Applied Exemption

The comments are here. One issue in the WRTL rulemaking is whether the as applied exemption required by the Supreme Court's opinion in WRTL applies only to the corporate and union PAC requirement or whether it also applies to disclosure of electioneering communications (over a certain dollar threshold). You wouldn't know it by reading the comments, because the issue of disclosure never comes up, but in advocating "Alternative 2" (comments, pages 9-10), the Center is arguing for no disclosure of the funders of issue ads that are entitled to an as applied exemption.

The adoption of Alternative 2 would be a very big deal. I'll have more on this soon.

"Edwards' acceptance of matching funds a necessity"

Jeanne Cummings writing in the Politico confirms what is now obvious: taking public financing in a presidential campaign is now seen as a sign of weakness, not strength.

"GOP electoral initiative dealt major blows"

The LA Times offers this must read report which concludes that the California electoral college initiative is all but dead.

"A New Poll Tax? Election fraud isn't a problem, but the Supreme Court may OK an ID law that burdens poor and minority voters."

Dan Tokaji has written this LA Times oped. See also this editorial in the Fort Wayne Gazette and this one in the Honolulu Star Bulletin.

"Edwards says he'll accept public financing"

CNN offers this report.

"McConnell playing 'hard ball politics' with SEC [sic] nominee"

Gerry Hebert has written this oped in the Louisville Courier-Journal.

"Mystery man's key role in move to change Electoral College rules"

The SF Chronicle offers this report, which surely has the most tantalizing election-law related lede I've seen in some time: "Until this week, Missouri attorney Charles 'Chep' Hurth III was best known for a headline-grabbing incident a decade ago in which he bit a young female law student on the butt in a bar. Now Hurth, the city attorney for New Haven, Mo. (population 1,800), is the agent for a deep-pocketed group that donated $175,000 to fund a Republican-backed effort that would reshape the landscape of presidential politics in California."

"The GOP's fairness fakery"

Patt Morrison has written this LA Times column, with the subhead: "Republicans can't carry California, so what do they want to do? Change how the state divvies up electoral votes."

"The Democratic Dark Side"

Gail Collins writes this NY Times column, which begins: "All the major Democratic candidates for president have signed a pledge promising they will only go to Florida or Michigan when they want to raise money. Among the really bad ideas in the history of the Democratic Party, this ranks somewhere between butterfly ballots and William Jennings Bryan."

Editorials on Supreme Court Decision to Hear Voter ID Case

See here, here, here, here, here, here, and here.

"Dems move controversial FEC nominee"

The Politico offers this report (see also this Washington Post report and this Roll Call report ($)). A reader who passed along the link asks: "Could Senator Barack Obama prove his civil rights bona fides by killing the nomination of Hans von Spakovsky to the FEC?"

"The Relationship between Association and Identity"

The third and final post in Heather Gerken's series at Balkinization is now available. In the post, she highly recommends this forthcoming Yale Law Journal essay by Michael Kang, "Race and Democratic Contestation."

Bob Bauer Gets Results!

First there was this. Then there was this. Now there is this.

"States' new laws help GOP raise voter challenges"

The Sacramento Bee offers this report, which begins: "Ohio and Florida, which provided the decisive electoral votes for President Bush's two razor-thin national election triumphs, have enacted laws that election experts say will help Republicans impede voting by Democratic-leaning minorities in 2008." See also this news release and report from Project Vote.

On the radio...

I'll be on Which Way L.A.? talking about the California electoral college initiative (the subject of this oped). Yesterday, I was on Airtalk talking about the cert. grant in the voter i.d. case.

Bauer on the Voter ID Case Cert Grant

Don't miss this.

Von Spakovsky Nomination Passes Out of Committee Without Recommendation, Thanks to Defection of Democrat Ben Nelson Over the Question

See here and here. The nomination now moves to the Senate floor. The Hill quotes Sen. McConnell as follows: "None of these nominees will move across the Senate unless they move together...The view has always been that the Democrats pick the Democrat candidates and Republicans pick the Republicans."

More Coverage of Cert Grant in Indiana Voter ID Case

NY Times; Washington Post; LA Times; USA Today; Chicago Tribune; Indianapolis Star; Roll Call; Legal Times. My earlier coverage is here.

"Nelson set to sue DNC over Florida's primary"

The Hill offers this report.

Lithwick on von Spakovksy

Dahlia Lithwick has written Do Not Vote for this Guy at Slate. The Senate Rules Committee hearing on the FEC nominations is about to begin, and apparently there's no deal.

"Mystery lifts a bit on drive; A small-town lawyer is tied to funding for electoral-vote change."

The Sacramento Bee offers this report, which begins: "The name of the donor behind a controversial initiative to change how California apportions its vote for president in 2008 was revealed in campaign filings late Monday. But Democrats opposed to a measure they decry as a "Republican power grab" are no closer to actually identifying the mysterious financial backers of the campaign." The Caucus blog (NYT) offers Backer of California Electoral College Initiative is Guliani Supporter.

"Justice Kennedy's Emerging Vision of Race"

Heather Gerken has this post at Balkinization, Part I of a series summarizing this forthcoming Harvard Law Review commentary. UPDATE: Part II is now here.

Breaking News: Supreme Court Grants Cert in Indiana Voter Identification Case

As I urged in this Washington Post oped and as discussed in Adam Liptak's "Sidebar" column yesterday, the Supreme Court has granted cert in the Indiana voter identification case, Crawford. You can find the Court's order here. I see this as good news, for reasons I discuss in my oped. But I'm sure this makes others in the voting rights community very nervous, out of fear that the Court will make things worse. I'm hoping for the best, and indeed hope that the Court can use this new case to correct some troubling aspects of its brief opinion on the issue of id last year in Purcell v. Gonzalez. Part III of my forthcoming Stanford Law Review article discusses the case and issues in detail.

The Court has expedited briefing in the case, and I expect it will be heard in January or February. UPDATE: Here are some early news stories and commentaries: AP; WSJ law blog; Reuters. More: Dahila Lithwick (audio); Lyle Denniston.

"Will California Put GOP Over the Top?"

I have written this oped for the San Diego Union Tribune. It begins: "Might Democrats' fears of a Republican-backed initiative that would change how California allocates its 55 electoral college votes in the 2008 presidential election lead to a much-needed reform of our initiative process? It is possible that Democratic members of the Legislature, fearing the Electoral College measure, could take steps to eliminate all votes on ballot measures during low-turnout primary elections. That change would be good for the initiative process in California, but legislators will have to act fast."

"As deadline looms, clean cash is king"

The Hill offers this report, which begins: "With five days until the end of third-quarter fundraising, Democratic presidential candidates are looking to avoid media maelstroms like the one Sen. Hillary Rodham Clinton (D-N.Y.) endured thanks to Norman Hsu, a lack of oversight and a mountain of checks. A key part of their strategy? Increasing background checks on donors."

"Trio sentenced for role in vote-buying scheme"

AP offers this report from Kentucky. Like many of these reports, it does not describe in any detail how the fraud took place, and whether absentee ballots were involved. The only details provided are: "The three said Walter Shrout, at the time the Bath County judge-executive, and local businessmen Roosevelt 'Sonny' Swartz, gave them money to pay some of the county's poorest residents to vote for Shrout. Shrout ended up winning the election."

Justice Stevens on Bush v. Gore

A reader points out that the penultimate paragraph of Jeff Rosen's lengthy NY Times Magazine profile of Justice Stevens is the following:

Near the end of my interview with Stevens, as I started to leave his chambers, he almost shyly suggested that I might want to consult some of the opinions he wrote on the U.S. Court of Appeals in Chicago, before he joined the Supreme Court. I should be sure, he said, to look up a case from 1970, in which his colleagues, at the request of an incumbent U.S. senator from Indiana, stopped a recount in a close election on the grounds that it might compromise the integrity of the ballots. Stevens dissented, insisting that the recount procedures were perfectly fair and that the state judges should be trusted to handle the litigation honestly, without having their impartiality questioned by interference from federal courts. I asked Stevens why the decision was important. "Because," he said, his eyes flashing, "I had it very much in mind when I wrote Bush against Gore."


Posted by Rick Hasen at 06:08 AM

"Senator Feinstein's Effort to Pass Senate Campaign Electronic Filing Bill Blocked for Third Time"

Via email comes a press release which begins: "U.S. Senator Dianne Feinstein (D-Calif.), Chairman of the Rules and Administration Committee, today attempted to move common sense legislation that would require Senate campaign finance reports to be filed electronically. And for the third time this year, the effort was blocked by a Republican Senator. Senator Feinstein spoke on the Senate floor this afternoon in support of S. 223, and asked for unanimous consent to pass the legislation. However, Senator John Ensign (R-Nev.) objected to the motion."

McCain-Feingold-Thompson?

See here.

"Other People's Politics: In Defense of the New York Times"

The Wall Street Journal offers this editorial, which begins: "Two bastions of liberalism are discovering the nasty side of campaign finance reform now that it has landed in their own backyards."

"Election Law Journal Offers Previews of Two Key Cases to Be Argued Next Week in U.S. Supreme Court"

The Election Law Journal has issued this press release, which begins: "As the Supreme Court begins its new term on the first Monday in October, it will once again wade into the muddy waters of election law in two important cases previewed in the upcoming October 2007 issue of Election Law Journal. 'These cases could have an impact on the 2008 elections and well beyond, and the ELJ case previews by Joseph M. Birkenstock and Christopher S. Elmendorf clarify what's at stake in these complex and important cases,' said Richard L. Hasen, co-editor of Election Law Journal. Page proofs of both case previews are available on the journal's website, www.liebertpub.com/elj."

You can also access the uncorrected page proofs of the case previews of Washington v. Washington State Republican Primary (oral argument, Monday October 1) and N.Y. State Board of Elections v. Torres (oral argument, Wednesday, October 3) directly at this link.

Three Voter ID Editorials

See Voter ID Will Have Limited Impact, Prepare Yourself to Vote, and Voter ID Still Stinks.

"New York Times Says It Violated Policies Over MoveOn Ad"

See this column by Howard Kurtz in the Washington Post. Bob Bauer weighs in too.

It Looks Like the Deal to Push Von Spakovsky FEC Nomination Through Senate May Be Off

See Civil Rights Coalition Speaks Out Against FEC Nominee in Roll Call. ($) The newspaper also reports House Paper Trail Bill Stalled for Now.

"Lobbying & Law --- K Street's Sea Change"

The National Journal offers this interesting article ($), which begins: "Now that a reluctant President Bush has finally signed new lobbying and ethics rules into law, most K Street professionals are preoccupied with nuts-and-bolts questions: What will the disclosure forms look like? Will breakfast bagels violate the ban on providing meals to lawmakers and their aides? Which types of political contributions will lobbyists have to report?"

"EAC Releases 2006 Military and Overseas Citizens Voting Report"

See this press release.

"Fear but Few Facts in Debate on Voter I.D.'s"

Adam Liptak's "Sidebar" column discusses the Crawford Indiana voter id case case, which was the subject of my Washington Post oped last week.

Though the Justices are expected to announce cert. grants on Tuesday, it would not surprise me if cert. is not granted in the case on Tuesday even if it does pique the interest of one or more Justices. Monday's conference is the longest of the year, and the case could be put over for a subsequent conference.

For much more on Crawford, search for "Crawford" in the search box on the right side of the blog, or you can see this forthcoming article in the Stanford Law Review, which Adam Liptak was kind enough to link to today in his column.

"Fla. Democrats Set to Stick to Jan. 29 Vote"

AP offers this report, which begins: "The Florida Democratic Party will stick with a Jan. 29 presidential primary even if it means losing all its nominating convention delegates, a party source said Saturday."

"In 2008, Bush v. Gore Redux?"

Bob Herbert has this must-read column on potential legal challenges to the California electoral college initiative, should it apply for the ballot. It quotes Laurence Tribe as saying that the measure clearly violates Article II. Rick Pildes more sensibly says it is not an open and shut case. Though it could give Tribe the chance to be on both losing sides of the Article II argument, just as he was on both losing sides of the equal protection argument (in Bush v. Gore and the California recall litigation).

"Top Florida Democrats would end DNC fight"

The Orlando Sentinel offers this report.

" Civil Rights Groups Oppose Nomination of Hans von Spakovsky to FEC"

See here and here.

"S.F. supervisors blamed for blocking new voting system"

The SF Chronicle offers this report, which begins: "If it takes three weeks to count the votes in this November's election, the Board of Supervisors should bear the blame, San Francisco Mayor Gavin Newsom said Thursday."

"Hsu Broke Election Laws, FBI Charges"

The Washington Post offers this report.

"Primary Doldrums, and the Regional Rotation as Alternative"

Bob Bauer's latest.

"Outside judge will hear voter fraud suit"

See this news from South Mississippi.

"Feds charge Ed Jew in bribe scheme - Supe now faces two criminal prosecutions"

The SF Chronicle offers this report.

"Voting machines may be tested again"

The latest from the FL-13.

"Director's Note: Little Things That (Might) Mean a Lot"

Doug Chapin offers these thoughts in the latest Electionline weekly newsletter.

"EAC to Host Conference about Military and Overseas Voting"

See this press release.

Coverage of Yesterday's Senate Rules Committee Hearing on Changing the Presidential Primaries System

See coverage in the San Jose Mercury News; CQ Today; and The Hill. You can also watch the hearing here (RealPlayer required).

"Cuyahoga County bought touch-screen machines; it has to make them work - an editorial"

The Cleveland Plain dealer offers this editorial.

Video and Audio Now Available of AEI Forum on NAMUDNO

See here.

"Past Clouds Candidates' Donor Lists; Names From '90s Scandal Among Clinton 'Bundlers'"

The Washington Post offers this report. Bob Bauer comments.

"Election Law in the Air, Yesterday and Today in DC"

Bob Bauer offers this comment, which begins: " Rick Hasen is in DC, before the Senate Rules Committee on the subject of regional Presidential primaries and in the Washington Post with a piece on the Supreme Court and voter identification. Election law is in the air: and the Senate yesterday did its part, polluting that air with a vote to bar further consideration of the proposal for District of Columbia voting rights."

"What Congress Should Be Talking About"

Dan Tokaji has written this Election Law@Moritz comment on the future of the Holt Bill.

"Voting Rights Advocates Challenge Florida Registration Law in Federal Court"

The Brennan Center has issued this press release.

"A Voting Test for the High Court"

The Washington Post has published my oped on Crawford, the Indiana voter id case. It begins:

At a private conference next Monday, the Supreme Court will consider whether to hear a challenge to Indiana's new law requiring voters to show photographic identification at the polls. The court should take the case, both to correct a troubling partisan divide among lower-court judges over the constitutionality of such laws and to reject a pernicious opinion by federal Judge Richard A. Posner that belittles the right to vote.

Watch Webcast of Senate Rules Hearing on Presidential Primary Legislation

It should be streaming here beginning 9:30 am eastern Wednesday. Those of you who have written to see my testimony should find it at the same link Wednesday morning.

"Georgia voter ID faces election test"

AP offers this report.

"Candidates Head to Ends of the Earth in Hunt for Campaign Donors"

CQ Politics offers this interesting report.

"District of Columbia Voting Bill Falls Short in Senate"

The NY Times offers this report, which begins: "Republican senators dealt a crushing setback on Tuesday to the District of Columbia's hopes of gaining its first full voting member of Congress. Although supporters of a bill granting the city representation in the House thought their chances of success were the best in decades, they came up three votes short of the 60 needed to avoid a filibuster. The bill, which failed on a vote of 57 to 42, is not likely to be resubmitted this year."

An Apparent Deal on Von Spakovsky?

Via email comes an announcement that the Senate Rules Committee has scheduled an "executive business meeting at 10 a.m. on Wednesday, September 26, 2007 to consider the nomination of Robert C. Tapella of Virginia to be Public Printer; and the nominations of Steven T. Walther of Nevada, David M. Mason of Virginia, Robert D. Lenhard of Maryland, and Hans von Spakovsky of Georgia to be Members of the Federal Election Commission." Roll Call reports "Senate Democrats are expected to name a top lawyer for Democratic Senatorial Campaign Committee Chairman Charles Schumer (N.Y.) to fill a vacancy on the Federal Election Commission, a potentially safe selection that would avoid a brewing showdown with Republicans over a controversial GOP commission pick." It looks like this is being facilitated by Democrats dropping their opposition to the von Spakovsky nomination. Gerry Hebert is fuming mad.

Off to DC...

to testify about S. 1905, the "Regional Presidential Primary and Caucus Act of 2007." The linked site should post my testimony Wednesday morning, as well contain a link to a webcast.

"Ethics rules prove to be lawyers' bonanza"

Jeanne Cummings has written this interesting piece for The Politico on the new lobbying law.

"Photo IDs are required at polls Tuesday"

The Atlanta Journal Constitution offers this report.

Opposition to Cert Petition Filed in City of Modesto Case

You can find it posted here at Ballot Access News. I continue to believe this case has a good chance of being granted cert, but some of the facts mentioned in this opposition in relation to possible mootness have caused me to temper my prediction of a cert grant.

State Files Supplemental Brief Opposing Cert in Indiana Voter ID Case

You can find the supplemental brief in Crawford here. The Court is scheduled to consider the cert. petition at its Sept. 24 conference. I'll have more to say about this case soon.

Putting Together Hsu Contribution Data

Via Instapundit comes this interesting post on Norman Hsu's contributions. Obviously I have not verified any of these numbers. But to me this shows that disclosure really is valuable as a means for interested persons (and not just professional journalists) to follow the money. I do suspect that some of the questions raised by the blogger are likely answered as a result of recordkeeping insufficiencies rather than any conspiracy to hide relevant information.

Toobin on Bush v. Gore

I just received an advanced review copy of The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin. It looks like it has a detailed discussion of the Supreme Court's internal deliberations in Bush v. Gore. I look forward to reading this very soon and will report more after I've read those parts.

"The Growing Litigiousness of Czech Elections"

Kieran Williams has written this article for Europe-Asia Studies. Here is the abstract:

The 2006 Czech elections produced a record number of lawsuits, more than all previous elections to the Chamber of Deputies combined. This article explains the rise as due primarily to the introduction of a new administrative court with special responsibility for electoral disputes. Although the law makes a successful challenge to a result almost impossible, low-cost litigation is attractive to minor political parties as a form of campaigning. The article focuses on the two aspects of the 2006 election that generated the most complaints, media coverage and disproportionality between seats and votes.

"Officials Challenge Voting Rights Law"

AP offers this report on today's argument in the NAMUDNO case. The lower court panel sounds very likely to reject plaintiff's constitutional attack on the renewed section 5 of the VRA.

For what it is worth, here is what I wrote on Sept. 12, 2006 (almost exactly a year ago), when this three-judge panel was named: 'A three judge court has been named: district judge Paul Friedman, district judge Emmet Sullivan, and DC Circuit judge David Tatel. [note: an earlier version of this post incorrectly referred to Judge Sullivan as being on the DC Circuit] This is likely a good draw for defenders of the constitutionality of section 5. But I don't think the lower court opinion is going to matter very much, however it comes out. This issue---either in this case or one of the others being filed---will be resolved when the Supreme Court resolves it."

"Analysts say early voting will ease poll waits"

AP offers this report from Ohio.

President Bush Signs Lobbying Reform Bill, Issuing Tepid Signing Statement

The signing statement is here. BNA called ($) the president's statement "unenthusiastic" and noted he waited until the last minute to sign the legislation.

"In Defense of the Conventions as Advertising, and in Search of Resources"

Bob Bauer's latest blog post.

"Brennan Center Urges Justice Department to Reject Florida's Revised Voter Registration Law"

The Brennan Center has issued this press release.

"Will House Leaders Duck Debate on Electronic Voting Compromise?"

Steven Rosenfeld has written this piece for AlterNet.

"Rolling Back the Clock on Campaign Reform"

Roll Call offers this profile of Brad Smith and the Center for Competitive Politics Brad and John Lott have also written this NY Post oped on the NY Times' advertising rate given to the controversial Moveon.org advertisement.

"A lost chance to reform redistricting"

George Skelton has written this LA Times column.

"Primary Chaos"

Eliza Newlin Carney's latest "Rules of the Game" column from National Journal is now available.

"State Democrats backing down on primary"

The Miami Herald offers this report, which begins: "Florida Democrats, unable to work out a compromise to avoid harsh sanctions imposed by the Democratic National Committee, appear ready to give in and declare the Jan. 29 presidential primary meaningless."

In Depth Look at How Hsu Gained Influence

See stories in the Washington Post, NY Times, and LA Times.

"D.C. Voting-Rights Debate Nears Do-or-Die Moment"

The Washington Post offers this report.

"Who's Afraid of Voter ID?"

The Wall Street Journal offers this editorial.

Blum on NAMUDNO Hearing

Following up on this post, Edward Blum has written an LA Times oped, Primed for a Voting Rights Act overhaul.

Senate Hearing on Regional Presidential Primary Bill

The following press release arrived via email:

Senate Rules Committee Schedules Hearing on Legislation to Reform Presidential Primary Process
- Hearing scheduled for September 19 at 9:30 a.m. -
Washington, DC -- The U.S. Senate Rules and Administration Committee will hold a hearing on Wednesday, September 19, at 9:30 a.m., to examine S.1905, legislation introduced by Senators Amy Klobuchar (D-Minn.) and Lamar Alexander (R-Tenn.) to reform the presidential primary process by creating a rotating regional primary system.

The hearing will be chaired by Rules Committee Chairman Dianne Feinstein (D-Calif.).

Date: Wednesday, September 19
Time: 9:30 a.m.
Location: The Senate Rules and Administration Committee Hearing Room
301 Russell Senate Office Building

The following witnesses will testify at the hearing:
Senator Klobuchar;
Senator Alexander;
Senator Joseph I. Lieberman (I-Conn.);
Iowa Secretary of State Michael Mauro, Co-Chairmen, Elections Subcommittee on Presidential Primaries, National Association of Secretaries of State;
Kentucky Secretary of State Trey Grayson, Co-Chairmen, Elections Subcommittee on Presidential Primaries, National Association of Secretaries of State;
Richard L. Hasen, Professor, William H. Hannon Distinguished Professor of Law, Loyola Law School; and
William G. Mayer, Associate Professor, Department of Political Science, Northeastern University

Bill Summary
The Regional Presidential Primary and Caucus Act of 2007 would:
Create a region-by-region system in which states in the West, Midwest, South and East would take turns hosting the first round of primaries and caucuses.

Starting in 2012, the first region would be chosen by lottery and the primaries and caucuses would begin on the first Tuesday in March, and continue on the first Tuesday in April, May and June, at which time all regions will have chosen candidates for the party conventions. In the following presidential-election year, a different region would vote in the first round.

All regions would rotate through the first-round position once every 16 years.

Iowa and New Hampshire would not participate in the regional rotation, and would retain their positions of holding the first-in-the-nation caucus and primary.

The legislation is sponsored by Senators Klobuchar, Alexander, Lieberman, Feinstein, and Kay Bailey Hutchison (R-Texas).

"Count Every Vote--All 538 of Them"

Brendan Loy has posted this draft on SSRN. Here is the abstract:

This article strikes a blow in defense of America's much-maligned system of choosing a president: the Electoral College. It argues that, although imperfect, the Electoral College is superior to the alternatives and should be retained because it does an excellent job of balancing the two central purposes of presidential elections: choosing the right winner, and doing so in a reasonably timely and undisputed fashion.

Whereas most literature defending the Electoral College focuses primarily on federalism, this article details the pragmatic and procedural case for maintaining the status quo. A direct national election would be a nightmare in a close race. Recounts and legal challenges would stretch from sea to shining sea, and with two centuries of legal precedent tossed aside, courts would have a very difficult time managing it all. Without the multiple layers of unappreciated procedural safeguards provided by the current system, post-election uncertainty could stretch well into January, raising doubt about whether we would have a clear winner by inauguration day.

No election system can be perfect, because an election is a measurement of the popular will, and all measurements have margins of error. That said, the current system, while imperfect, is pretty darn good. It gets the result right, at least arguably, almost every time -- and it always gives us a definitive result every single time, as any presidential election system must. It always gives us a president.

The article's introduction discusses a hypothetical 2012 election between President Barack Obama and Governor Jeb Bush. In this scenario, the “interstate compact” system, a proposal currently under consideration in various states, has come into effect. This means the Electoral College still exists, but now purports to represent the nationwide popular vote. The scenario briefly outlines some of the dire results this change could have in a very close election.

The remainder of the article is split into five parts. Part I argues that, as mentioned above, presidential elections have two main purposes: choosing the right winner, and doing so in a reasonably timely and undisputed fashion. Parts II, III and IV analyze how well these purposes are served by three different possible election systems: the current Electoral College system, a true direct popular-vote election, and the hybrid interstate-compact proposal. The article contends that the current system is, on balance, superior to either alternative; it more reliably fulfills both of the twin purposes of presidential elections than would either proposed reform. However, acknowledging the possibility that this balance could someday shift, Part V suggests a set of minimum requirements that would be absolutely necessary for a functional popular-vote system, should it ever become necessary to abandon the Electoral College.

"Washington Supreme Court Upholds Regulation of 527 Organization as a 'Political Committee'"

The CLC blog has the details.

"Voting Panel Scrutinized; Experts picked to test Ohio's machines are biased, critics say"

The Columbus Dispatch offers this report.

"Towards Full Participation: Solutions for Improvements to the Federal Language Assistance Laws"

Jocelyn Benson has written this ACS issue brief.

Crucial NAMUDNO Argument Monday Morning at 8 am

You would not know it given the dearth of news coverage, but a very important oral argument on the constitutionality of the renewed section 5 of the Voting Rights Act (an issue discussed and debated in detail here) will be held Monday at 8 am (note time change) before a 3 judge federal court in Washington DC.

In advance of the argument, the parties have filed memoranda (here and here) responding to Nate Persily's forthcoming Yale piece on VRA renewal.

There will also be this post argument forum at AEI on the oral argument.

My law review article written before renewal setting out the constitutional issues is here. An updated version of that article appears as a chapter in The Future of the Voting Rights Act.

"Court Rules Against FEC Again in Shays III Case: Statement of J. Gerald Hebert, Campaign Legal Center Executive Director"

The Campaign Legal Center has issued this press release about this opinion issued by Judge Kollar-Kotelly. The release begins: "Yet again a federal court has found the FEC's implementation of the Bipartisan Campaign Reform Act (BCRA) to be unreasonable as well as undermining to the purposes of the law. Today's ruling from U.S. District Judge Colleen Kollar-Kotelly found that the FEC's grossly strained interpretation of a number of BCRA provisions - including coordination standards - did not meet the basic requirement of 'reasoned decisionmaking' in the Administrative Procedures Act."

Light Blogging Through the Weekend

I'll be taking off a couple of days for Rosh Hashana, though I should have an oped or two appearing over the next few days in some major newspapers.

Term Limits//Redistricting Deal Apparently Dead in California

The Sacramento Bee offers Term Limits Trickery? and Dan Walter's column, "Perennial Proposal Dies Again."

Interesting Interview With John Kerry's 2004 Ohio Election Lawyer

See here.

"Cost major problem with biometric ID at polls"

The Vancouver Sun (Canada) offers this report.

"Governor: Election law being broken"

AP offers this report from Mississippi.

"Voter Purging: A Legal Way for Republicans to Swing Elections?"

Steven Rosenfeld has written this piece for AlterNet.

"New Analysis Shows Voter Identification Laws Do Not Reduce Turnout"

David B. Muhlhausen and Keri Weber Sikich have posted this analysis at the Heritage Foundation website, which reaches different conclusions than some earlier research. I look forward to reading this and hearing from others about their views of this report.

"Bringing the Public Along in Making the Case for Reformed Presidential Public Financing"

Bob Bauer has this new blog post.

"D.C. Vote Threshold"

Michael Steele and J.C. Watts have written this Washington Times oped on DC voting rights.

Federal District Court in Mass. Rules that VRA Can Be Constitutionally Applied to Felon Disenfranchisement Claim

Mike Pitts brought to my attention this opinion in Simmons v. Galvin.

EAC Commissioner Hunter Expresses Caution about the Scope of the EAC to Issue NVRA Regulations

Via the newly revamped EAC website, you can find this statement by Commissioner Hunter. It concludes "While the EAC has taken an overly-expansive view of its regulatory authority in the past, I encourage my colleagues to exercise caution in promulgating [NVRA] regulations to ensure the EAC does not impermissibly erode the rights of the states or exceed the limited authority granted to it by the United States Congress."

"Continuity Plan Still Incomplete"

Roll Call offers this report, which begins: "Six years ago today, terrorists failed in their attempt to fly an airplane into the Capitol. Despite that scare, lawmakers have yet to fully plan for the legislative branch's survival in the immediate aftermath of a catastrophic attack on their Membership."

"Romney Adviser Linked to Anti-Thompson Internet Site"

The Washington Post offers this report.

"'I can tell you with 100 certainty that Norman Hsu is NOT involved in a ponzi scheme....He is COMPLETELY legit.'"

So wrote a Hillary Clinton staffer in June.

"Fox News' Estrich misrepresented California Democratic electoral vote initiatives"

This post appears at Media Matters for America.

"A Damaging Paper Chase In Voting"

Tim Ryan has written this Washington Post oped, which begins: "When early jet aircraft crashed, Congress did not mandate that all planes remain propeller-driven. But this is the kind of reactionary thinking behind two bills that would require that all voting machines used in federal elections produce a voter-verifiable paper record. These bills -- the Ballot Integrity Act (S. 1487), and the Voter Confidence and Increased Accessibility Act (H.R. 811) -- are understandable backlashes to the myriad problems encountered in the implementation of electronic voting."

Ronald Dworkin on WRTL Decision

See part 3 of this essay in the NY Review of Books. Bob Bauer comments.

"Prominence of debate over niqab seen as example of Islamophobia"

This report from Canada begins: "The debate over whether veiled Muslim women should have to show their faces when they vote is really a bid to disenfranchise them, says a British journalist who converted to Islam after her release from a Taliban jail."

"Cuyahoga County commissioners want presidential primary postponed"

The Cleveland Plain Dealer offers this report, which begins: "While other states jockey for power in the presidential nomination process by moving up their primaries, Cuyahoga County commissioners want Ohio's to be moved back. The commissioners are concerned that the voting equipment used in Ohio's largest county won't be able to handle that big election, and they want to give the Cuyahoga Board of Elections and the secretary of state time to consider options, including changing the voting equipment." The paper also offers Ohio voting machines to be tested before primary.

John Fund on Disclosure of Democratic Bundlers

See here.

"Primary Chaos"

Eliza Newlin Carney's latest Rules of the Game column from National Journal is now available.

"Schlozman submits written answers to Senate committee"

The Kansas City Star offers this report, giving Schlozman's edited answers to the Senate Judiciary Committee.

"Attorney seeks probe of electoral vote plan; Lafayette man wants Congress to investigate whether White House sought ballot initiative to change system"

The Contra Costa Times offers this interesting report.

"A Raw Deal for California: Will Gov. Schwarzenegger Trade Away Term limits?"

John Fund has written this column.

"Pet Project's Veil is Only Partially Lifted"

The Washington Post offers this report.

Elmendorf on the Georgia Voter ID Decision and Burdick

Following up on my query about his views in connection with the Georgia voter id case decided last week, Chris Elmendorf sent a response to the Election Law List. With his permission, I reprint it below:

Here is a rather longwinded response to Rick's query below ("we'll see if Chris Elmendorf thinks the judge really applied Burdick"), which may be of interest to list-serve readers who have been following the voter ID cases closely. The short answer is, he really did apply Burdick, but it's not at all clear that he applied Burdick correctly, and he failed even to recognize the doctrinally available alternatives to his approach (alternatives that may well have yielded a different result).
[Click on the extended entry link for Chris's remarks, which are very thoughtful and well worth reading.]


Judge Murphy's latest opinion in the Georgia photo-ID litigation appears to rest on three suppositions about how "the Burdick test" is properly applied to voter-participation claims:

First, that Burdick sets up a two-tier system of review, rather than a true sliding-scale standard.

Second, that the lower tier of scrutiny under Burdick is the "anything passes" rational basis test of Williamson v. Lee Optical, rather than a "rational basis plus" standard, one with bite against substantively arbitrary requirements.

Third, that the scrutiny-level-determining "burden" associated with a challenged restriction on voter participation is to be assessed from the point of view of "the reasonable voter"” If the burden does not exceed what the reasonable voter may reasonably bear, it is de minimis as a matter of law, whatever the consequences for voter turnout may be. Judge Murphy does not state this expressly, but the underlying intuition pervades his opinion. The critical facts supporting his de minimis conclusion are these:

- Georgia's authorization of "on demand" absentee balloting, for which no ID is required.

- Georgia's provision of free voter identification cards to anyone who lacks other qualifying ID and who complies with certain minimal paperwork requirements. A registered voter in Georgia may establish her identity for purposes of obtaining the voter ID card with nothing more than a copy of her voter registration application (for which she need not provide any identifying documentation).

- Georgia's efforts to contact registered voters who, according to the state's records, lack a current, valid driver's license (or non-driver ID issued by the state’s Department of Driver Services), and to inform them of the new ID requirement for voting. Among other things, the state undertook a "data match" of its voter registration and DDS records, and mailed a letter about the new ID requirement to every registered voter who did not turn up in the DDS database.

There is a colorable legal basis for each of Judge Murphy's suppositions about the nature of the Burdick test. What is most disappointing about his opinion is that he failed even to consider the doctrinally available alternatives, and to recognize his suppositions as choices which must be defended. This failure was not inconsequential. Let me give two illustrations:

(1) On the two-tier account of Burdick, there is a plausible doctrinal basis for arguing that the default standard of review is "rational basis plus" rather than "anything passes" rational basis. (For one version of the argument, see footnote 56 of my forthcoming article "Structuring Judicial Review of Electoral Mechanics," available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=980079.) If RB+ is the lower tier of review, then some of the very features of the Georgia photo-ID law that make its “reasonable-voter burden” small may in fact warrant an injunction against it. That the state provided for liberal, fraud-prone absentee voting "on demand" and without ID may reduce the ID requirement's burden on the hypothetically reasonable voter, for example, but it also makes the law seem arbitrary vis-a-vis its putative purpose. So too with issuing photo-ID cards to voters who produce only a voter-registration form for which no identity documents are required.

- (2) There are at least two significant alternatives to the reasonable-voter gloss on the Burdick threshold test. First, the Posner/Overton "consequences for voter participation" approach, under which the burden question is answered by investigating the number of eligible voters who will cease participating on account of the challenged requirement. Second, the "danger signs" approach, which I have offered (borrowing Justice Breyer's heuristic from Randall) in an attempt to furnish an integrative account of the Supreme Court’s electoral mechanics jurisprudence since Storer. (See the paper linked to above.) In light of the record before Judge Murphy, the consequences approach probably supports his denial of an injunction, but a judge working within this framework should have expressly invited the plaintiffs to reopen the case down the road if new evidence shows that the ID requirement has had the exclusionary impact that the plaintiffs fear. By contrast, the danger signs approach may warrant heightened scrutiny today, on account of (a) the fact that Georgia's current ID requirement was enacted, on substantially partisan lines, to replace an unconstitutional ID requirement previously enacted by the same legislative coalition, (b) the fact Georgia's ID requirement is an outlier relative to the practices of the other states, and, perhaps, (c) the Hood/Bullock statistical analysis, which showed that Georgia voters without DDS-issued ID were significantly more likely to have voted in Democratic than Republican primaries (the study addressed the 2002 primaries, which predate the enactment of the photo-ID requirement). Judge Murphy excluded the Hood/Bullock analysis as not probative--a correct ruling on the reasonable-voter approach to burdens, but wrong on the consequences and danger-signs approaches.

One final point. Both Rick H. and Bob Bauer suggest that Judge Murphy was somehow led astray by Purcell. I don't see this. Murphy relied on Purcell only for the proposition that the state has a compelling interest in combating voter fraud. This is not new. The Court asserted as much as far back as 1972, in Dunn v. Blumstein. And in any event, Judge Murphy's holding does not depend on the state having a compelling interest in combating fraud, given his two-track/rational-basis reading of Burdick.

Chris Elmendorf
U.C. Davis School of Law

New on SSRN

Jurij Toplak has posted Equal Voting Weight of All: Finally 'One Person, One Vote' from Hawaii to Maine?. Here is the abstract:

The 'one person, one vote' rule requires districts within states to have precisely equal populations. However, the populations of districts differ from state to state, varying from under 500,000 to over 900,000 people. The cause lies in the so-called method of apportionment. Through history, several different methods have been used, but all have failed to allocate to states their exact and fair share of representation. This article challenges this systemic distortion of the 'one person, one vote' principle by inviting readers to consider a weighted voting model that distributes the states' power in the House of Representatives exactly 'according to their Numbers'. The application of this model would result in an exact mathematical equality of each vote's weight regardless of the voter's state of residence. The article also suggests why the courts may even find the model to be a constitutional imperative.

Jim Brudney has written Liberal Justices' Reliance on Legislative History: Principle, Strategy, and the Scalia Effect. Here is the abstract:

This article conducts an in-depth examination of Supreme Court Justices' reliance on legislative history during the Burger, Rehnquist, and early Roberts eras. In doing so, it makes two important contributions to current statutory interpretation debates.

First, the article presents a powerful case against the conventional wisdom that legislative history is a "politicized" resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions - if true - should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When these eight liberals use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors then review individual majority opinions to demonstrate how this surprising pattern of reliance is based on neutral doctrinal considerations. Liberal Justices use legislative history to illuminate the existence and contours of complex statutory bargains that often favor conservative or pro-employer positions. The authors consider alternative explanations, premised on the institutional factor of who assigns majority opinions and also the instrumental possibility that liberals withhold use of legislative history in "minor" cases to enhance its value in more important decisions. They conclude, however, that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion.

The article's second major contribution is to identify and analyze the Scalia Effect that has arisen with respect to liberal Justices' use of legislative history since 1986. In the face of Justice Scalia's fervently expressed opposition to legislative history, liberal Justices have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals' strategic restraint is to make their use of legislative history in remaining (mostly pro-employee) majority opinions appear more ideological than was true before Scalia joined the Court. The authors also show that liberal justices have special reasons for acting strategically in this regard. When liberals rely on legislative history, Justice Scalia is significantly less likely to join their majority opinions even when he votes on their side; he also is significantly less likely to vote for the majority result when these liberals rely on legislative history than when they do not. Intriguingly, Justice Scalia's strong resistance to legislative history usage does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues a free ride: he is every bit as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not.

This essay responds to an article by Professors Boudreau, Lupia, McCubbins, and Rodriguez (hereinafter “BLMRod”) that was posted in Legislation and Statutory Interpretation Abstracts on July 26, 2007, (http://ssrn.com/abstract=997924) and that will appear in the San Diego Law Review, vol.44, no.2, 2007.

The essay situates BLMRod's article in the context of recent efforts by a number of scholars to reclaim foundational legitimacy for intentionalism as an approach to construing statutes. The essay first applauds BLMRod's use of insights from communication theory to conceptualize statutes as compressed substantive or procedural commands that cannot be adequately understood without an appreciation for the compression process that generated them. The essay explores certain implications of this thematic focus. It discusses how the authors' approach may help clarify the status of legislative history as evidence of ascribed or imputed intent. It also suggests how that approach may enhance the value of legislative history when contrasted with key interpretive resources generated by the two other branches of government - i.e., the canons of construction and agency rules or adjudications.

The essay then adopts a more critical perspective toward BLMRod's treatment of the compression (lawmaking) and expansion (law-interpreting) processes. It suggests that by viewing the compression process as essentially a majority party domain, the authors undervalue important congressional conversations involving minority party members, especially although not exclusively in the Senate. Further, the essay discusses how the architecture of congressional conversations may differ across subject matter areas more than the authors' basic model seems to contemplate. Finally, the essay addresses the process of expansion, particularly BLMRod's approach to conversations among a bill's coalition of supporting members. It suggests ways in which the authors' analysis of what motivates ardent and pivotal supporters, and how courts should treat these two key groups when elaborating the meaning of text, may be in need of some refinement.

"Kansas officials talk on voter IDs"

This report from the Morning Sun begins: "A U.S. judge in Atlanta has upheld a Georgia law requiring identification to vote, raising the question: Does a voter ID law fight voter fraud, or does it amount to disenfranchising minorities and the poor? A poll of three area state lawmakers -- Sen. Jim Barone, Rep. Julie Menghini and Rep. Bob Grant -- showed differing opinions on the inevitability of the ID laws, as well as the need for them and the ethics involved."

"Valley lawmakers push for campaign on redistricting"

The Fresno Bee offers this report.

"Election reform bill won't work, expert tells MPs"

See this news from New Zealand.

"Two Cases: a Voting Rights Loss, and an Appeal Against Kos?"

Bob Bauer's latest.

"Democrats Face Problems in Attempts To Get Election Reform Legislation Passed"

BNA Money & Politics Report offers this report ($), which begins: "Democratic lawmakers trying to advance legislation dealing with voting machine problems and deceptive election practices have run into major objections from Republican colleagues and others, raising doubts that action can soon be completed on the measures." On the latter bill, the report states: "Republicans sought during the Senate committee markup to offer numerous other amendments dealing with such issues as preventing voter fraud. They complained the bill before the committee focused only on Democratic complaints of 'dirty tricks' in recent elections, while ignoring traditional Republican concerns about ineligible voters casting ballots. Both GOP and Democratic senators indicated that more work would be needed before a final bill could be brought to the Senate floor and receive wide bipartisan support." Roll Call offers this report ($) on the problems passing the Holt bill.

Tomorrow, Dan Tokaji Gets a Life

Congratulations Dan!

"Director's Note: Welcome to the Buyer's Market!"

Doug Chapin has these thoughts in this week's Electionline newsletter.

"Blogger who filed rejected FEC complaint against Kos may appeal"

See here. The complainant should get a lawyer to advise him that such an appeal has virtually no chance of success.

Breaking News: Trial Court Dismisses Challenge to Georgia Voter ID Law

The AJC blog reports the news, and provides links to the judge's decision in two parts (here and here).

I have not had a chance to look at this in any detail yet, but apparently the judge held that all of the plaintiffs had standing problems (pages 120-131 of the opinion). He then turned to the merits out of an abundance of caution. Applying the Burdick sliding scale standard (see page 140, we'll see if Chris Elmendorf thinks the judge really applied Burdick), the court found that the burden on voters was not onerous: it was not that difficult to get the i.d., or to vote absentee. (141-52) The court distinguished the facts from when it granted the preliminary injunction barring the use of the voter id law in the 2006 elections.

Turning then to state interests, the court relied upon the unfortunate statement of the Supreme Court from Purcell v. Gonzalez about the need to balance disnefranchisement with the feeling of disenfranchisement that could come from knowing there is voter fraud going on. (My criticism of this point is Part III of this draft).

Finally, the court rejected plaintiff's arguments that there was not enough proof of actual fraud to justify this law, noting that it was judging this question under a deferential rational basis standard rather than a strict scrutiny standard.

I would suppose this ruling will be appealed, and any resolution may depend in part on whether the Supreme Court grants cert. in the pending Indiana voter id case, Rokita.

Two from SF Chronicle on Controversial Ballot Measures

The newspaper offers this report on the electoral college initiative, which begins: "A GOP-backed initiative to toss out California's winner-take-all system of assigning electoral votes was approved for circulation Wednesday, and Democrats immediately slammed it as a backdoor attempt to hand Republicans the 2008 presidential election."

It also offers this report, which begins: "A pair of Bay Area election officials said Wednesday that mistakes by their offices - not political pressure - forced them to revise the signature count in the barely successful effort to instantly qualify a term limits initiative for the February ballot."

"A Chance to Make Votes Count"

The NY Times offers this editorial on the Holt bill.

"Defender of New Hampshire's Primary Stays Firm"

The NY Times offers this report.

" Draft Voluntary Voting System Guidelines Delivered to EAC"

The EAC has issued this press release.

"Youtube! No, YOUtube!: Fighting over the Electoral College, Provoked by the Hayward Video"

Bob Bauer offers these thoughts.

"New Report Details 2006 Voting Problems With an Eye Towards 2008; MyVote1 National Election Report: Voice of the Electorate 2006 Released"

The Reform Institute has issued this press release about this new report.

Mayer on "What is this Lobbying that We are so Worried About?"

Lloyd Mayer has posted this draft on SSRN. Here is the abstract:

obbying is both an essential part of our democratic process and a source of some of our greatest fears about dangers to that process. Yet when Congress, the public, and scholars consider loosening or, as is more often the case, tightening the restrictions on lobbying, they usually assume that everyone knows what activities are in fact “lobbying.” They therefore overlook the fact that multiple definitions of lobbying currently exist in the various federal laws addressing lobbying. This Article seeks to fill this gap by answering the question of how lobbying should be defined for purposes of the existing federal laws relating to lobbying. The Article first explores the three sets of applicable laws, which tax lobbying, disclose lobbying, and restrict lobbyists. This exploration reveals that all three sets of laws arise out of a common concern regarding the influence of interest groups on government actions. Drawing on the extensive research regarding how interest groups wield such influence, the Article then determines that this research strongly suggests that the vulnerability to interest group methods that raise the greatest concerns varies depending on the type of government actor that an interest group seeks to influence. The Article therefore proposes the adoption of single definition of lobbying that covers all direct attempts to influence government officials and employees in Congress and at the very highest levels of the Executive Branch, while excluding attempts to influence other types of government actors and to influence the public.

"Lobbying: President Expected to Sign Reform Bill After Return from Meetings in Australia"

So says ($) BNA Money and Politics Report.

"MacLaughlin to Head Task Force on Campaign Financing; Former Presiding Judge of Superior Court Says Public Funding Could Be an Option"

See this news from California.

Senate Judiciary Committee to Mark Up Deceptive Practices Bill

Tomorrow at an Executive Business Meeting, the Senate will mark up S. 453, Deceptive Practices and Voter Intimidation Prevention Act of 2007 (Obama, Schumer, Leahy, Cardin, Feingold, Feinstein, Kennedy, Whitehouse).

Krislov and Katz on State Constitutions

Marvin Krislov and Daniel Katz have posted Taking State Constitutions Seriously on SSRN (forthcoming, Cornell Journal of Law and Public Policy). Here is the abstract:

Section I of this article briefly describes both the theoretical and historical origins of American direct democracy. Next, it completely categorizes the set of processes that together comprise the domain of direct democratic law making vehicles. These include both “direct” and “indirect” methods as well as mechanisms that provide for the modification of both statutory and constitutional law. Next, this section uses these classifications to describe current trends in citizen involved law-making.

Prior research demonstrates an overall increase in use of direct democratic processes. This article, however, breaks new ground as it uses nearly three decades of empirical data, collected specifically for this article, to demonstrate that where available, the Direct Constitutional Initiative (DCI) is rapidly becoming the process of choice for the participants in direct democracy. In other words, at least within the sixteen DCI states the direct democracy phenomenon should be best understood as constitutional in dimension.

To better understand the micro-foundations of this important empirical finding, Section II of the article reviews institutional rules of the relevant jurisdictions, comparatively considering the requirements for the proposal and ratification of direct constitutional and statutory changes. It finds that the institutional rules displayed in Direct Constitutional Initiative jurisdictions incentivize individuals and groups seeking a substantive policy change to select that approach.

Both the empirical findings and the analysis of the incentive structure motivate Section III where the article evaluates the increased use of the Direct Constitutional Initiative. The section begins by reviewing the legal literature that considers the judicial review of direct democracy. This literature finds that judicial officials may be unwilling or unable to police direct democracy and in particular constitutional direct democracy. Drawing upon a host of interdisciplinary scholarship, Section III then presents critiques of not only direct democracy but also its role in constitutional change. Namely, this extant literature cautions against unnecessary constitutional change and cementing temporal proposals.

Applying these lessons, this article does not directly consider substantive outputs of constitutional direct democracy. Instead, it focuses upon a set of procedural elements that would, at a minimum, both clearly demarcate constitutional and statutory change and help the Direct Constitutional Initiative embrace robustly supported institutional proposals. To do this, it surveys the nation for a set of best direct democratic practices that together may yield an optimal method of constitutional modification. In all, it seeks a process that takes state constitutions seriously and treats them as the supreme level of American state law.

"Picture ID rule raises fear about voter exclusion"

See this report from Michigan.

The contrast between how Michigan is handling poor voters who don't have ID and Indiana (subject of the Crawford case, currently the subject of a cert petition) is stark. In Michigan, voters who are poor and don't have an id will simply fill out an affidavit at the polling place and be allowed to vote. Though the Indiana law allows someone to file an "indigency affidavit" in lieu of producing identification, the process is burdensome. A poor voter in Gary, for example, would have to cast a provisional ballot in a polling place, then make a separate trip within 10 days to file an affidavit in the Lake County seat of Crown Point, a 30-minute car ride away. There's no public transportation or government subsidy to get the voter there. More on Indiana's law here.

"State given 8 days to replace 10,000 voting machines"

NJ.com offers this news update.

"Backer of Swift Boat ads has tie to law firm pushing vote change"

AP offers this report, which begins: "Lawyers behind a California ballot proposal that could benefit the 2008 Republican presidential nominee have ties to a Texas homebuilder who financed attacks on Democrat John Kerry's Vietnam War record in the 2004 presidential campaign."

"Fund Raiser Absent From Bail Hearing"

The NY Times offers this report, which begins: " A top Democratic fundraiser who criminal past has roiled the campaigns of top presidential candidates failed to appear Wednesday for a bail hearing and a judge issued a new warrant for his arrest. Norman Hsu, who had been a fugitive for more than 15 years, forfeits the $2 million bail he posted last week. His attorney said Wednesday he didn't know where his client was."

Tenure for Winkler

UCLA Law has awarded tenure to my good friend Adam Winkler. Adam writes in constitutional law, history, corporate law and, most importantly, election law. Congratulations Adam!

"Fla. governor: State primary stays on Jan. 29"

AP offers this report.

Lathrop and Gage Establishes Federal PAC

See here. I guess Thor Hearne's law firm is taking a break from its Wikipedia cleansing.

Hayward on Districting and the California Electoral College Measure

Here she is on You Tube. What Allison misses in her analysis of the California measure is the national political implications of this measure. Once I see Allison or others supporting the California plan pushing it in large Republican states such as Texas, I'd take the arguments much more seriously.

"House Ready to Take Up Legislation Requiring Paper Trail for Voting Systems"

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

"New term-limits measure qualifies for state ballot"

The SF Chronicle offers this report, which begins: "A new Democrat-backed term limits initiative qualified for the February ballot Tuesday by a scant 957-signature margin, and opponents are complaining that political pressure pushed the measure over the top. The measure only received enough valid signatures to qualify after four counties - Alameda, Contra Costa, Riverside and San Bernardino - revised their counts Friday and added 5,490 signatures to the 'certified and final' totals they had submitted earlier in August." See also Dan Walters: Term limit measure a nail-biter in the Sacramento Bee.

"Book says Souter mulled resignation after Bush v. Gore"

That's according to a blog post about Jeffrey Toobin's new book, The Nine, which I hope to read soon.

"Bloggers Win Before the FEC"

See this post at Daily Kos, about these decisions issued today by the FEC. See also this explanation on the FEC's response to the complaint against Daily Kos. UPDATE: More from Bob Bauer and The Politico.

"EAC to Consider Process for Adopting Regulations Under National Voter Registration Act (NVRA)"

The EAC has issued this media advisory.

"Super-Duper Tuesday: What Does It Mean for Election Administration?"

Nathan Cemenska has written this Election Law @ Moritz comment.

"For McCain, First Amendment runs 2nd to campaign reform"

Tony Mauro has written this article for the First Amendment Center.

"Can parties impose order on '08 calendar? As states seek the limelight with earlier primaries, the national parties threaten harsh penalties."

The Christian Science Monitor offers this report.

"Hsu Faces Probe of Fundraising for Democrats"

The Wall Street Journal offers this report, which begins: "The U.S. Justice Department is investigating possible campaign-finance violations by top Democratic fundraiser Norman Hsu, according to people familiar with the probe. On Friday, Mr. Hsu surrendered to California officials on an unrelated grand-theft charge dating to the early 1990s."

See also this LA Times report and this Washington Post editorial.

"New Jersey tries to clean up with new campaign finance program"

AP offers this report.

"GOP trying to rig the presidential election"

George Skelton has written this column on the electoral college initiative being circulated in California right now. I'll have more to say on this subject soon. My earlier Findlaw column on the imploding presidential election system is here.