"Issa's backing revives electoral vote initiative"

The Riverside Press Enterprise offers this report. Sayeth Bruce Cain: "It could easily be the determining factor in who the next president is...If the Republican Party can pull this off, it's a brilliant tactic."

" Voters less enthusiastic about changing term limits"

The SF Chronicle offers this report.

"Justice official apologizes for remarks about blacks"

AP offers this report on yesterday's John Tanner hearing.

" New Life for Corporate Speech - Wisconsin Right To Life "

Jan Baran, Thomas Kirby and Caleb Burns have written this article for Metropolitan Corporate Counsel.

"The Evidence Mounts for Presidential Public Financing"

Meredith McGehee has this post on the CLC blog.

"Vitter pays election case fine"

This news story begins: "U.S. Sen. David Vitter recently paid a $25,000 penalty to the Federal Election Commission for failing to disclose that his campaign paid for calls to voters during the final weeks of his 2004 Senate race." Another snippet:

One FEC commissioner, Hans A. von Spakovsky, dissented from the agency finding. Spakovsky reasoned that the first batch of calls did not constitute public political advertising subject to the law.

Spakovsky also wrote that a disclaimer during the second call would have skewed the responses.

"From a public policy standpoint, the majority’s view that research and polling calls require disclaimers is something that will make social scientists and pollsters shudder with dismay," Spakovsky wrote.

"A Drive-By Swift-Boating"

Ruth Marcus offers this Washington Post column. Bob Bauer comments.

"EAC Vice Chair Rodriguez to Host Brownbag Lunch Discussion-Seeks Public Input on the NVRA"

See this press release.

"MORE REPUBLICAN INCUMBENTS THAN DEMOCRATS FACE WELL FUNDED CHALLENGERS AT NINE MONTHS"

The Campaign Finance Institute has issued this press release.

"Chamber reprimanded for effort to boost Case"

The Honolulu Advertiser offers this report, which begins: "The Federal Election Commission has admonished the U.S. Chamber of Commerce for using corporate money on automated telephone calls last year to help former U.S. Rep. Ed Case in the U.S. Senate primary against U.S. Sen. Daniel Akaka, D-Hawai'i."

"Nader sues, claims Democrats sabotaged his 2004 campaign"

McClatchy offers this report. Link via Political Wire.

"Primary Rush Forces New Tack for Candidates"

The WSJ offers this report.

John Tanner, Others, to Testify Before House Subcommittee Oversight Hearing on Voting Section of DOJ

Details here.

"A ticket back for the termed-out?; Experts say term-limits measure could let former legislators seek old seats."

The Sacramento Bee offers this report, which begins: "A measure on the Feb. 5 ballot to alter term limits for California lawmakers may inadvertently open the door for dozens of termed-out Assembly members to return to their old seats in Sacramento, according to independent legal experts." You can find the text of Prop. 93 here.

"Vote Early, Count Often"

Jonathan Soros has written this NY Times oped.

"Ties to Giuliani Alleged"

The latest on the California electoral college initiative.

"Bundling ban would unravel free speech"

Brad Smith has this oped in The Politico.

"Judge leaves election-law loophole open; The complex decision about write-in candidates means no changes for state and local primaries next year."

Another report from Florida.

"Sen. Nelson pushing for speedy ruling on primary"

See this news from Florida.

"It's Not Fraud, It's Alienated Voters"

James Sample offers this oped in the Politico. A snippet: "Unsurprisingly, exacting scrutiny of the 2004 election in Ohio revealed a possible voter fraud rate of 0.00004 percent. Americans are more likely to be struck by lightning. Granted, lightning does strike, but we're not yet ready to pass legislation requiring a dome for the planet. "

Motion to Affirm or Dismiss in Alabama Section 5 Preclearance Case

See here.

" Dems Up Ante On Electoral Initiative"

See this post at KQED's Capital Notes blog.

In the Election Law Mailbag

A few interesting items have arrived since my last roundup

David Primo, Rules and Restraint: Government Spending and the Design of Institutions (U. Chicago Press 2007)

Spencer Overton, Stealing Democracy (updated paperback edition, WW Norton 2007)

Jocelyn Benson, Su Voto es su Voz! Incorporating Voters of Limited English Proficiency into American Democracy, 48 Boston College L. Rev. 251 (2007)

Lloyd Mayer, The Much Maligned 527 and Institutional Choice, 87 Boston University L. Rev. 625 (2007)

Mike Pitts, Defining "Partisan" Law Enforcement, 18 Stanford Law and Policy Review 324 (2007)

Mike Pitts, Ordinary People, 6 Election Law Journal 113 (2007) (reviewing Overton, Stealing Democracy)

Mike Pitts, Heats or Tails?: A Modest Proposal for Deciding Close Elections, 29 Connecticut L. Rev. 739 (2006)

Frank Wu and Francey Lim Youngberg, People from China Crossing the River: Asian American Political Empowerment and Foreign Influence, in Asian Americans and Politics: Perspectives, Experiences, Prospects (Gordon H. Chang, ed., Stanford University Press 2001)

Demos and Project Vote Submit Letter to House Committee in Advance of the John Tanner Hearing

See here.

"NAACP to challenge voter law; Local chapter digs in its heels, calls Mich. ID requirements a 'poll tax.'"

The Detroit News offers this report.

"Dump winner-take-all; The states should divvy up electoral votes so people are more accurately represented."

Alex Keyssar has written this LA Times oped.

"For Fairer Campaigns, Full Public Funding"

Mark Lange and Ellen Rose have written this Christian Science Monitor oped.

"STEVE CHAPMAN: Campaign reformers, drunk on power"

See this column.

"Von Spakovsky Deserves Senate Confirmation"

Brad Smith has written this Roll Call oped ($). UPDATE: Bob Bauer responds. A snippet: "My concern as an observer of the FEC, a student of campaign finance policy, and a practitioner before the agency has been a new politicization of FEC nominations. By that I mean that if a Democrat is elected President, I would prefer to deny Republicans the opportunity to argue, citing von Spakovsky as precedent, that a future Democratic nomination may be blocked because the nominee held objectionable views outside the sphere of campaign finance."

"Judicial Races Now Rife With Politics; Corporate Funds Help Fuel Change"

The Washington Post offers this extensive front-page report.

"Hello Fellow Rudy Supporter"

This item on an LA Times political blog raises the question of possible coordination between the Giuliani campaign and the effort to qualify the California electoral college initiative for the ballot. (HT: The Carpetbagger Report).

"Steve Wiegand: Is latest remap try also DOA?"

See this Sacramento Bee column on the latest redistricting initiative in California.

"Messy, But Not a Mess"

George Will's latest Newsweek column, on whether the presidential primary system is broken.

FEC Issues NPRM on Campaign Finance Bundling by Lobbyists

See here. Bob Bauer comments.

A Query on FEC Appointees

I've just post the following question to the Election Law listserv: "If the Senate does not reach agreement on the pending FEC nominations, those nominations expire when Congress recesses (likely in December). At that point, Could President Bush name new recess appointees to the FEC? If so, is it possible he could (1) rename those whose terms have expired? or (2) name some 'nominal' Democrats, stacking the FEC with a majority of Republican-leaning commissioners?"

A Few California Republican Members of Congress Want to Raise Funds for the New Redistricting Initiative

See this request for an advisory opinion.

Volokh on George Will's Column on Flint Case

Eugene and I agree on this one.

"Senate Battle Over FEC Nominee May Hamper Agency's Ability to Act"

The Washington Post offers this report. Bob Bauer thinks an FEC shutdown would be a bad thing. Brad Smith disagrees.

Does Viacom Get the Media Exemption for Stephen Colbert's Promotion of His Candidacy on the Colbert Report?

Allison Hayward says yes, and Cliff Jones, in comments to her post, agrees. I'm leaning towards no, but the issue is not a slam dunk.

Here's the relevant law. A corporation cannot fund the express advocacy of a candidate for federal office out of its treasury funds. So General Motors could not run a newspaper ad saying "Vote for Colbert for President." The same rule applies to labor unions. The funding has to come from its political action committee.

But there's an exemption in the law for "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate."

Allison's main point is that Colbert does not control Viacom, Comedy Central, or even The Colbert Report. (I think we'd need to know a lot more about the Colbert Report's power structure before venturing a guess on the last point.) But I think she's elided over a prior question. The exemption only applies to a "news story, commentary, or editorial." It does not apply to everything Viacom does. So if Viacom took out a full page ad in the New York Post paid for with treasury funds saying "Vote for Colbert," that would be an illegal corporate expenditure regardless of the fact that Viacom could put on an express editorial saying the same thing on one of its television stations.

So the question could well turn on whether the shameless (and hilarious) promotion of the Colbert candidacy on the Colbert Report actually constitutes a bona fide news story (no way) or commentary or editorial (harder question). The fact that the show is a satire makes the interpretation question all the more difficult: does schtick count as commentary? I'm not so sure. But consider a case where Jay Leno does his comedy routine wearing a "Vote for Colbert" button. I don't think that would get the media exemption, and NBC could be in trouble. It is quite a fine line to draw.

There's a definite irony in this interpretation, in that it treats satirists who want to run for President worse than serious candidates who have a broadcast platform and want to use it to promote their candidacies for federal office. Thus, imagine if Bill O'Reilly were running for president. His (less hilarious) show includes real political commentary, so, under this interpretation, O'Reilly would have a stronger case for the media exemption. (This would bother the NY Times editorial board greatly).

Given the dearth of caselaw and useful FEC commentary on this question, we might well ask two questions to figure out how this case should come out. First, what is the purpose that the ban on funding from corporate treasury funds is meant to further? Second, given that purpose (or purposes), what is the justification for the media exemption. I imagine that many of us would answer those questions differently---and the answers we give could provide better guidance on how to treat a question like Viacom's promotion of a Colbert candidacy.

Bob Bauer is right that this joke could end up putting the FEC in a pickle. But the joke does provide a nice excuse to think about these important questions.

UPDATE: Both on and off the election law listserv, those who oppose campaign finance regulation argue that it is a First Amendment violation for the government to be in the business of deciding something like whether the commentary on the Colbert Report constitutes "news, commentary, or editorial."

This is a classic argument of deregulationists. Perhaps the best statement of the position is Justice Scalia's in his dissent in Austin v. MIchigan Chamber of Commerce. The question arises periodically when there are cases pushing the distinction, as in the controviersies over NRA News and Michael Moore in the last election, or over the FEC rulemaking question over who gets the media exemption in the Internet age.

In fact, the position of Brad Smith or Patterico could well become the position of the Supreme Court if it were to revisit the media exemption post Austin. But it is not the view of the First Amendment now, which recognizes (1) a right to limit corporate and union spending on certain political advertising to prevent the distortion of the political process (what is in effect an equality rationale for campaign finance reform) and (2) a desire to carve out an exemption from this rule for bona fide news stories and commentaries in news and opinion media. Colbert's case is only the most recent one that is close to the line.

The argument over the media exemption is usually used as a foot in the door to argue against any limit on corporate spending. And the argument has some force, as I've explained in what is probably the most controversial article I've ever written, Campaign Finance Laws and the Rupert Murdoch Problem, 77 Texas Law Review 1627 (1999). In that article I say that if this country were ready to take the equality rationale for campaign finance regulation seriously, we wouldn't have a media exemption for express advocacy even by media corporations. (I believe that Sen. McConnell denounced me by name for this article on the floor of the Senate some time back.) My current view is that many in this country are willing to live with some inconsistency, wanting both a limit on corporate spending on elections and an exemption for those corporations that act as news media. It may not be intellectually coherent, but it is a desirable political compromise, and one I'm no longer tempted to argue against.

But if we are going to have this distinction, there will continue to be cases close to the line. I doubt that Stephen Colbert is trying---a la Jim Bopp---to create a test case to go to the Supreme Court to strike down a major pillar of campaign finance law. But we could end up there pretty soon, either from Colbert or another challenge in the near future.

For more see this report in the Politico and this NY Sun editorial.

Is the "Gist" of the "Critique" of Commissioner von Spakoksky that He's a "Republican"?

So claims Brad Smith. Then why are Democrats not also opposing Commissioner Mason? Or why did they not oppose Commissioner Toner? Or why did a Republican, John McCain, oppose Commissioner Smith?

"New Hampshire's turn as leader may be up"

The Politico offers this interesting report on the primary season.

"Stephen Colbert Is Running-And Not Everyone's Laughing"

This post appears at the blog (!) of the New York Times editorial board. (I remember way back to 2003 when I had to explain to people what it was that I did on a "blog" and that it was not contagious.)

Bauer on the new California redistricting initiative

Here.

"Voter ID Laws: Preventing Fraud or Suppressing the Vote: Panel Discussion"

You can watch the video of the recent ACS event here. A transcript is promised.

"IRV in the National Spotlight"

Fairvote has this item on its webpage, linking to editorials surrounding an instant runoff election in Cary, North Carolina.

"Colbert as Campaign Finance Scofflaw, Or Not"

Allison Hayward has this interesting post at Skeptic's Eye. For the record, I told the Slate staffer that I could offer no opinion on the communications law aspect of things. I do disagree with Allison on the election law aspects, however.

"Groups propose redistricting plan for state lawmakers"

The LA Times offers this report, which begins: "The Los Angeles Chamber of Commerce, California Common Cause and AARP proposed an initiative Tuesday that would change the way the state's legislative districts are drawn, taking the politically sensitive matter away from lawmakers."

Unlike other recent measures, I think this one has a reasonably good chance of passing if supporters spend enough to qualify it for the ballot and, if it qualifies, to defend it against expected relentless attacks by those who would stand to lose under the measure.

"McCain-Feingold in the Ivory Tower"

George Will writes about the Flint case. I've predicted a cert. denial.

"'Subversive' Verse: A Reply to Bauer; and Why 2008 May Look Like 2004"

Steve Hoersting has written this interesting post at the Center for Competitive Politics blog. Bauer responds as does this Shakespeare-inspired author.

Another DOJ Voting Section Controversy

See here.

"A million voters could be disenfranchised"

Big election administration news from Canada: "Recent changes to the federal Elections Act will wind up disenfranchising more than 1 million rural voters, Canada's elections watchdog warns. Just four months ago in a bid to clamp down on voter fraud, Parliament amended the Canada Elections Act to require that each voter produce proof of identity and residential address before being allowed to cast a ballot. But Elections Canada now says more than one million rural Canadians do not have a proper residential or civic address -- complete with street name and number -- as envisaged by the legislation."

"As Campaigns Chafe at Limits, Donors Might Be in Diapers"

The Washington Post offers this report.

"Is Stephen Colbert Breaking the Law?"

Slate offers this Explainer.

"Senators pursue campaign finance amendment"

The Crypt blog at The Politico has this post. You can find the text of the proposed constitutional amendment here. If I were going to write an amendment to allow for significant regulation of campaign financing to promote political equality, I certainly would not write it like this, which puts no limits whatsoever on Congressional power to limit spending money. Under this proposed amendment, Congress could pass a law prohibiting anyone from raising or spending money on campaigns against incumbent legislators in Congress.

"Don't Play Poker with All Saints Church"

Don Tobin has this interesting commentary on the Moritz Election law website.

"Seeing the Ethics Rules, and Raising an Exception"

Jeffrey Birnbaum has this In the Loop column for the Washington Post.

"RNC move sparks standoff with the early-voting states"

The Hill offers this report, which begins: "The Republican National Committee (RNC) on Monday issued its preliminary guidelines for the delegation selection process for next year's convention, and put five states on notice that they had violated GOP rules and risked losing their delegates if changes are not made before the final report. New Hampshire, Florida, South Carolina, Michigan and Wyoming all ran afoul of RNC rules by announcing their intentions to hold their nominating contests outside the RNC-allowed window."

"Legislators ask Census Bureau to change how prisoners are counted"

See this letter posted at the Prisoners of the Census website.

"GOP team revives electoral vote initiative; The intent is to change California's winner-take-all system, which would give Republicans an edge in the presidential race."

Given the terrible fires in Southern California, it is perhaps no surprise that this very important political story is buried on page 25 of today's LA Times. (See also this Sacramento Bee report.) Perhaps Democrats in the California state legislature will now consider my suggestion in this San Diego Union-Tribune oped to get rid of statewide ballot initiatives in primary elections, which would have the effect of shifting this measure, if it qualifies, to the November ballot.

"Recovering Sen. Gallegos hits the big time"

The Houston Chronicle offers this voter-id related report.

"Bundling no byproduct of McCain-Feingold"

David Vance of the Campaign Legal Center has written this commentary for The Politico.

"Study: Fewer ads, fewer attacks"

AP offers this report, which begins: "Missouri's political parties are not the financial powerhouses they once were. And that means voters have seen slightly fewer negative advertisements."

George Will on "Line-Item Foolishness"

See here.

"Voting Rights Controversy Another Mess For DOJ"

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

Bob Bauer on the Colbert Candidacy

See here.

Sen. Obama Wants John Tanner to Go

This press release arrived via email:

...
OBAMA: JUSTICE DEPARTMENT MUST FIRE VOTING RIGHTS OFFICIAL
Comments about minority voters offensive, dangerous

\WASHINGTON , D.C. - U.S. Senator Barack Obama (D-IL) today sent the following letter to Acting Attorney General Peter D. Keisler calling on him to immediately replace John Tanner, the chief of the voting rights section of the Civil Rights Division at the Department of Justice, for offensive and erroneous comments he made about minorities.

On October 5, 2007, Tanner argued that photo identification requirements for voting cause problems for the elderly. However, he argued that such requirements do not disenfranchise minority voters because "Our society is such that minorities don't become elderly the way white people do; they die first." Video of Tanner's comments are here.

Earlier this week, Obama called on Attorney General nominee Michael Mukasey to address how he would reverse the Bush Administration's failure to enforce civil rights, for example, in the cases of the Jena 6 and the Georgia voter photo identification requirement. A copy of that letter is here .
Senator Obama has been working in the Senate to pass legislation he authored to protect voting rights and prevent deceptive and intimidating practices, and has been an outspoken critic of onerous photo identification requirements that disproportionately disenfranchise poor, minority, and disabled voters.

The text of Obama's letter is below:

October 19, 2007

The Honorable Peter D. Keisler
Acting Attorney General
Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001


Dear Mr. Keisler:

On October 5, 2007, at the National Latino Congreso in Los Angeles, John Tanner, the chief of the voting rights section of the Civil Rights Division, spoke on a panel regarding minority voters. During the course of that discussion, which focused on recent state laws requiring photo identification for voting, Mr. Tanner said that such photo ID requirements disadvantage the elderly "[a]nd that's a shame." He explained: "You know, creating problems for elderly persons just is not good under any circumstance."

However, according to Mr. Tanner, such requirements do not disenfranchise minorities, and in fact, they actually benefit minorities. He said: "Our society is such that minorities don't become elderly the way white people do; they die first. There are inequities in health care. There are a variety of inequities in this country. And so anything that disproportionately impacts the elderly has the opposite impact on minorities; just the math is such as that."

Such comments are patently erroneous, offensive, and dangerous, and they are especially troubling coming from the federal official charged with protecting voting rights in this country. Mr. Tanner has already demonstrated questionable judgment in overruling the decision of Justice Department lawyers that the Georgia photo ID requirement would disproportionately discriminate against African Americans. For Mr. Tanner to now suggest, in an effort to defend his erroneous decision, that photo identification are not necessary for minority voters because "they die first" shows just how far the Justice Department has fallen. This is a disgrace and yet another reason why the next Attorney General must demonstrate a strong commitment to civil rights.

But, until the next Attorney General is confirmed, you are in charge of the Department, and you are in charge of ensuring that our laws are enforced and that the civil rights of all Americans are protected. Through his inexcusable comments, Mr. Tanner has clearly demonstrated that he possesses neither the character nor the judgment to be heading the Voting Rights Section. For that reason, I respectfully request that you remove him from his position.

Sincerely,

Barack Obama
United States Senator

"An unlikely treasure-trove of donors for Clinton"

I expect this very interesting LA Times story to have some legs.

"Colbert 'run' risks breaking law"

The Politico offers this report.

Republican FEC Commissioners Express Some Doubts on Constitutionality of Requiring Disclosure of Electioneering Communications

This ($) is troubling: "Svoboda was challenged by the two Republican commissioners on the FEC, Mason and Hans von Spakovsky, who asked about the constitutional basis for requiring disclosure."

On the constitutionality of disclosure, see here Svoboda also added "that the FEC has little choice about what to do on the matter because disclosure is still required under BCRA. The Supreme Court's decision in WRTL struck down ad funding restrictions but left the disclosure requirement intact."

Graeme Orr on Australia High Court Felon Disenfranchisement Decision

See here.

FEC Issues NPRM on Candidate Travel in the Wake of New Lobbying Bill

See here.

"Colbert Consulted Parties Before Announcing Run"

The NY Times offers this report, which begins: "Stephen Colbert -- who announced plans to run for the presidency, though only in South Carolina, on his Comedy Central show Tuesday night -- is serious enough about the stunt that his staff reached out to the state's Democratic and Republican committees in advance of his declaration."

"Donor Bundling Emerges as Major Ill in 2008 Race"

The Wall Street Journal offers this front page report.

"The Politics of Voter ID"

This extensive article appears in the Jackson Free Press (Mississippi).

"FEC Moves Ahead With WRTL Rulemaking; Hears Widely Different Views on Key Issues"

BNA Money and Politics Report offers this report ($). Bob Bauer describes the rulemaking in verse.

"Time for a New Constitutional Convention?"

David Primo offers this Roll Call oped ($). It begins: "Congress and President Bush once again failed to enact any of the 12 appropriations bills prior to the beginning of the new fiscal year on Oct. 1. Recriminations abound, with House Appropriations Chairman David Obey (D-Wis.) blasting Bush for posing for 'political holy pictures' during a press conference Bush held criticizing Democrats for inaction. The budget process in Washington continues to be, in one word, broken."

"Nationwide Study Grades and Ranks Campaign Disclosure; 36 states pass, 14 fail, 21 earn higher grades"

The Campaign Disclosure Project offers this press release about this extensive report issued today.

"Large Donors Dominate Record-Setting Presidential Fundraising"

Lots of fascinating information in this release from the Campaign Finance Institute.

The Onion on the Most Important Issue Facing Voters in 2008

It's not what you think.

Iowa Caucus Jan. 3; New Hampshire Primary Dec. 11?

Here. The Roll Call editorial board descries the "primary madness."

"Many GOP Donors Yet to Open Wallets; Even Bush 'Rangers' Are Staying Away"

The Washington Post offers this report.

FEC Appeals Shays III

See this press release from the FEC. The Center for Competitive Politics is happy.

"FEC Considers New Rules for Issue Ads"

CQ Politics offers this report. The FEC's two day hearing on the Electioneering Communications rulemaking begins today. I have posted Commissioner Weintraub's opening statement here. If I receive other commissioner statements, I'll post them. My comments on this rulemaking with Richard Briffault are here.

Regulating a Different Kind of Campaign Speech

Forget false campaign speech. You won't want to miss this.

"Business abandons GOP for Democrats"

The Politico offers this report.

"Supreme Court denies review of state law favoring minority voices"

The SF Chronicle offers this report.

"State accuses voting machine firm of selling an unapproved model"

The SF Chronicle offers this report.

"Pa. high court considers Philadelphia cap on political donations"

AP offers this report.

"Can the Democratic Party Ignore Florida's Primary?"

The CS Monitor offers this report.

"U.S. Supreme Court refuses to hear Modesto case"

The Modesto Bee offers this news update.

"Getting Around Rules on Lobbying; Despite New Law, Firms Find Ways To Ply Politicians"

The Washington Post offers this front-page report.

Even Andy Borowtiz is Recycling His Bush v. Gore Material

Compare Supreme Court Gives Gore's Nobel to Bush with Supreme Court Gives Gore's Oscar to Bush.

More original is In Sign of Confidence, Clinton Airs Vicious Attack Ads about Herself; Bit to Preempt Rivals, Aides Say.

"State ID wrapped in red tape"

The Times of Munster, Indiana, offers this report, which begins: "Diane Pearson just wanted her daughter to have a state ID card. But a trip to the BMV last week has her thinking the requirements to get an identification card are''t exactly fair. Her daughter, Christina, 20, has Down syndrome and lives in a group home in Mishawaka, Ind. Proving her residency through a short list of acceptable documents was difficult for Pearson to do." See also this report from Michigan on voter id issues.

Perkins Coie Starts New Website Dedicated to Lobbying Issues, Especially under the New Lobbying Law

This looks like it will be a very useful and important site.

John Fund on Gerrymandering in California

See here. Bob Bauer comments.

"California Governor Vetoes Instant-Runoff Bill"

Ballot Access News offers this report.

"Electoral College Fiasco"

Eliza Newlin Carney's latest Rules of the Game column is up.

Cert Denied in Modesto Voting Rights Case

So reports Lyle Denniston. This is much to the relief of some voting rights advocates. I thought there was a pretty good chance the Court would take the case, but noted some standing and ripeness issues.

"Electioneering Ads at Issue for FEC"

Broadcasting & Cable offers this report.

And in election law news from Virginia....

One man, one vote, one big problem; Registrars say state's new system could cause Election Day trouble and Va. GOP's decision could impact Davis, Gilmore Senate candidacies.

Electionline.org website hacked

You might want to wait a while before visiting their page....

"Voting Machines Giving Florida New Headache"

The NY Times offers this report.

More John Tanner DOJ Controversy

This one from the controversy over Franklin County Ohio's voting machine scarcity in the 2004 presidential election.

" Arizona Libertarians Win Lawsuit Over Who Can Vote in Party Primary"

See this posting at Ballot Access News and this posting at "Of Arms and the Law" by the attorney who won the case.

"By Blocking Senate Campaign Finance Disclosure bill, Senator Ensign (R-Nev.) Would Hide Contributions to the Republican Campaign Committee he Chairs"

The Campaign Finance Institute has issued this press release.

"Governor vetoes election day registration for new citizens"

The LA Times offers this report.

"Showdown for district elections; High court about to decide if it will hear Modesto case"

The Modesto Bee offers this report, which begins: "Modesto City Council elections are in the hands of a whip-smart, 20-something Supreme Court clerk who is powerful and anonymous."

My earlier analysis of the cert. prospects of City of Modesto v. Sanchez is here.

Lots of Interesting Stuff Right Now over at Ballot Access News

Check it out.

FEC Hearing on WRTL to Last Two Days, Oct. 17-18

So reports ($) BNA.

Sens. Schumer/Specter Letter on Amending Constitution to Overrule Buckley

See here.

"Still Waiting in Florida"

The NY Times offers this editorial on the restoration of ex-felon voting rights.

"Justice Dept. Accused of Partisan Voter-Roll Purge"

NPR offers this audio report. In somewhat related news, TPMmuckraker offers Straight-Talkin' Voting Rights Chief to Appear Before House Panel.

"Make Voting Work Briefing"

Pew Trusts is holding this event on overseas voter issues on October 25.

"Obama Accuses von Spakovsky of Undermining Civil Rights"

The CLC has this blog post, linking to this oped by Sen. Obama in the Chicago Defender.

"AP Impact: Assembly speaker lives with fundraiser in LA penthouse"

AP offers this report.

"ACS Presents October 23 Briefing on 'Voter ID Laws: Preventing Fraud or Suppressing the Vote?'"

This should be a great event.

"Fewer Than Half of Eligible Minority and Low-Income Americans Voted in 2006, New Project Vote Report Shows"

Project Vote has issued this press release about this new report.

"State Democratic chair blasts Rokita; Says voter-fraud accusations in Clark County were baseless, partisan"

See this news from Indiana.

"Nunez Prop. 93 Plea to Caucus: Speaker privately asks all Assembly Dems to donate $50,000 each to term limits measure."

The Sacramento Bee offers this report, which begins: "Assembly Speaker Fabian Nunez privately has asked all 47 Assembly Democrats to donate about $50,000 apiece to help pass an initiative that could give all of them extra time in office."

Nunez himself is likely to become an issue in the anti-93 campaign, after this explosive LA Times story over the weekend, which begins: "As leader of the California Assembly, Speaker Fabian Nunez has traveled the world in luxury, paying with campaign funds for visits to some of the finest hotels and restaurants and for purchases at high-end retailers such as Louis Vuitton in Paris." He's already been derided (see here and here) by two LA Times columnists.

More on Modesto Case

As the Supreme Court considers the cert petition in the Modesto case, Modesto voters are soon going to vote on a proposal to use city council districts. See here. This suggests a possible mooting of the issues in the case.

"Clean Money from 'Corrupticut' to Congress"

James Sample has this post at the Huffington Post.

"Wertheimer Calls for FEC Commitment To Crack Down on 527 Groups in 2008"

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

"The United States Attorneys Scandal Comes to Mississippi"

Adam Cohen has written this Editorial Observer column for the NY Times. Bob Bauer offers interesting comments.

More on the John Tanner DOJ Controversy

Here, here, and here, which asks whether "Tanner [is] willing to take the fall for von Spakovsky."

Election Law Judges Course

Last Spring, the National Center for State Courts and the Election Law Program at William and Mary Law School invited me to create the first part in a web course for state court judges on handling election law litigation. I did a webcast presenting a general overview on election law litigation, followed by one on special issues related to pre-election review. Ned Foley is preparing webcasts on election day issues and post-election issues. Avi Rubin prepared a webcast on electronic voting issues.

These webcasts initially have been made available only to judges, but I'm happy to report that they are now available to anyone who wishes to see them at this link. Windows Media Player is required to play the video and see the accompanying powerpoint presentations.

"Schumer, Specter Push to Dismantle First Amendment"

The Center for Competitive Politics have issued this press release.

"Rokita Speaks In Bedford, Endorses Williams"

See this report. This is not the first time Indiana's chief election officer has given a speech supporting the election of candidates from his political party. He has also endorsed a presidential candidate, whose votes he is charged with counting and certifying in the upcoming election.

"Campus voting access not making the grade"

The Politico offers this report.

"The Tanner Doctrine--and from the Chief of the Voting Rights Section, No Less"

Bob Bauer's latest.

Election Reform Conference in DC Nov. 9-11

Details here.

"Pelosi: Seating of Fla. delegates up to candidate"

The Palm Beach Post offers this report.

"Refugio County Commissioner resigns, admits to voter fraud"

More absentee ballot fraud in Texas.

"Too Young to Vote, But Old Enough to Caucus in Iowa"

The WSJ offers this report.

"Supes unanimously OK election board"

See this report from Alameda County, CA.

More Bauer on WRTL and "Jane Doe" Condemnatory Ads

Another thoughtful post from Bob.

"Opponents Dig In Against Von Spakovsky As White House Urges Quick Confirmation"

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

DOJ Voting Rights Chief Makes Controversial Comments About Minorities and Voter ID

See here.

"Deal reported in voter registration case"

AP offers this report, which begins: "Elections supervisors in five Florida counties have agreed to a preliminary settlement as part of a federal court challenge to a state law that prohibits people from registering to vote in some cases, a civil rights group said Monday. Under the law, changes cannot be made to correct errors or omissions on voter registration applications once supervisors close their books 29 days before an election."

"Matching Funds System Can't Be Fixed for 2008, but Maybe for 2012"

Donna Brazile offers this Roll Call commentary.

"Mich. Primary Move Splits Democrats"

See this Washington Post report.

"Political Parties, Under Challenge, Seem to Have Justices' Sympathy"

See this Washington Post report.

"Justice Thomas: Leading the Way to Campaign Finance Deregulation"

I have written this analysis for the First Amendment Center, part of this symposium on Justice Thomas's First Amendment jurisprudence. My analysis begins: "Justice Clarence Thomas has not been afraid to go it alone when it comes to expressing the view that the First Amendment prohibits most, if not all, campaign-finance regulation. Twice he has taken a position rejected by his eight other colleagues in this area. But Justice Thomas' clear, if radical, deregulatory vision has proven to be influential, drawing other justices (perhaps soon a majority) toward his view that money spent on election-related advertising and other forms of speech cannot be limited by the government."

Election Law Petition to Watch: City of Modesto v. Sanchez

Tom Goldstein of SCOTUSBlog maintains a Petitions to Watch page at SCOTUSwiki, corresponding to his Legal Times column listing cases he thinks "are leading candidates for Supreme Court review or that raise significant national issues." Tom's got a very good track record, but I think there are advantages to specialization. In that spirit, I intend to preview "Election Law Petitions to Watch" when a significant cert. petition or appeal comes before the Supreme Court. (A few weeks ago Tom declined to list Crawford, the Indiana voter id case, on his list. I suggested (see comments) that Tom should have included this case, which the Court has granted. )

Tom's new Petitions to Watch list for Friday's conference is now available. Tom has not included City of Modesto v. Sanchez, No. 07-88. I think this case has a reasonably good chance of being granted, though there are ripeness issues associated with the case.

In this case, a state trial court struck down the California Voting Rights Act as violating the Equal Protection Clause and under a state constitutional provision. The Fifth Appellate District Court of Appeal reversed. The California Supreme Court denied review.

At issue is a lawsuit over whether the City of Modesto must move from at large voting to districts for city council elections. Plaintiffs brought a facial challenge to the law, arguing that it made racial classifications and therefore is subject to strict scrutiny. The intermediate appellate court viewed the law as not imposing any racial classifications and therefore rejected the City's argument that strict scrutiny should apply in considering whether the state may impose a districting solution for the problem of minority vote dilution.

Putting aside questions of standing and ripeness (which may be serious objections here), this strikes me as a strong case for Supreme Court review. I could see some of the conservative Justices on the Supreme Court very concerned about the lack of strict scrutiny in a racial vote dilution case. I also think that granting cert. is consistent with the Court's recent pattern (as in cases like Lopez Torres and the Washington top two primary case) in reaching out to grant cert in cases presenting interesting, and relatively low stakes, election law cases---because they are both interesting and important.

Can Corporations and Unions Pay for "Jane Doe" condemnatory Ads Out of General Treasury Funds After BCRA and WRTL II?

Bob Bauer notes that the issue is now before the FEC in its Electioneering Communications rulemaking. Bob and I had a spirited discussion about this at ASPA and at the dinner after my APSA panel where I presented the views (in this paper) that even some condemnatory ads are likely subject to an as-applied exemption following WRTL II. I also take the position in the paper that the debate is mostly of interest to academics and to those who want to bring test cases to push the law further. For corporations and unions that simply want to run ads likely to influence the outcome of federal elections but pay for those ads out of general treasury funds, there is an ample safe harbor for ads that should get the exemption.

"Senate Playing Game of Chicken over FEC Nominations"

This post appears at TPMmuckraker.

"Brewer threatens suit against U.S. election panel"

The Arizona Republic offers this report, which begins: "Arizona Secretary of State Jan Brewer told the federal Election Assistance Commission on Thursday that she's going to sue to make the commission follow Arizona voter-registration law. Brewer has been arguing with the commission for nearly two years over its refusal to print Arizona's proof-of-citizenship requirement on its voter-registration forms."

"Secretary of state post up for grabs"

See this news from Kentucky.

"Disenfranchisement and the Constitution: Finding a Standard that Works"

Demian Ordway has written a student note, 82 NYU L. Rev. 1174 (2007) currently available only on Westlaw. Here is the abstract: "Since the presidential election of 2000, a host of new claims has arisen alleging unlawful denial of the right to vote. Litigants have challenged the use of error-prone voting machines, misleading registration forms, and the highly controversial photo identification requirements for in-person voting. The law protecting the right to vote, however, is in disarray, leaving courts confused and unsure of how to proceed with these challenges. In particular, courts have disagreed sharply over the content of the relevant constitutional standard and how to apply it. Some courts have adopted the standard articulated by the Supreme Court in its 1992 decision, Burdick v. Takushi, while others have applied strict scrutiny. This Note criticizes the Burdick standard for being incapable of producing consistent results and advocates for a modified version of strict scrutiny motivated by structural concerns inherent in the democratic process."

"Fired Up! In the Blogosphere: Internet Communications Regulation Under Federal Campaign Finance Law"

Benjamin Norris has written this student note in the Washington University Law Quarterly.

"Obama's Maneuver Boosts Civil Rights Cred"

The Politico offers this report.

"Activist's lawsuit against state, national Democrats dismissed"

AP offers this report, which begins: "A federal judge dismissed a lawsuit on Friday filed by a Tampa Democratic activist against the national and state Democratic parties over the national party's decision to strip Florida of its delegates for next year's presidential nominating convention." See also this editorial in The Ledger.

More on Indiana Voter ID Case

See Against a National ID (LA Times editorial); Five Questions for Todd Rokita (IndyStar); This Grand Rapids Press editorial; This Terre Haute Trib Star editorial; Case Could Affect State Voter ID Debate (Parsons Sun, Kansas); and States Should Have Right to Require Photo Identification (Minot North Dakota).

More on the Washington false campaign speech case

See Eugene Volokh and the NY Times.

"State Dem group played hardball to kill GOP election system plan"

The SF Chronicle offers this report. See also this Sacramento Bee report.

"Dan Walters: Ballot is crude tool for policy"

See this Sacramento Bee column.

"Gingrich's excuse legally flawed"

The Politico offers this report, in which Newt Gingrich's lawyers admits it was politics, not McCain-Feingold, that caused him to choose not to run for President.

"State's highest court backs lying in politics; Justices say law regulating speech unconstitutional"

Howard Bashman links to a Seattle Post-Intelligener article on a 5-4 decision (3 opinions, all linked by Howard) of the Washington State Supreme Court. I had thought I was done revising chapter 11 of the Election Law casebook (Lowenstein, Hasen and Tokaji) on the constitutionality of regulating false campaign speech, but now it is back to the drawing board...

"Immigrant pleads guilty to voter fraud"

The headline sounds ominous but the facts of this article show no vast conspiracy. Oh, and a voter id card would have done nothing to stop this "fraud."

"Registrars say system has glitches"

See this news from Virginia.

Ray Martinez to Leave Pew, Become Government Relations Director at Rice

The Rice press release is here. He will still continue to teach election law as an adjunct at UT. Good luck, Ray.

"It's Name Is MUD"

Texas Weekly has this article ($) on the NAMDUNO VRA case currently being considered by a three-judge panel, and eventually headed to the Supreme Court. In the article, Edward Blum, the main force behind the suit, says: "'We're not looking to strike down Section 5,' he says. 'We're trying to get the right of sub-jurisdictions to bail out.'"

Another snippet: "Blum points out that states under Section 5 have cleaner election records than states not under the restraints. Hasen, though, sees the fairly good recent track record as possible evidence that current statute is working -- not that Texas can be trusted if freed from Section 5 and left to its own recognizance. 'Part of the reason why Texas may not have had any denials, they've learned what they need to do to get DOJ clearance,' he says. 'If you don't need DOJ clearance anymore, plans might change.'"

Big Business and Big Labor Want FEC to Create Exemption from Disclosure For Many Ads that Are Likely to Influence the 2008 Presidential Elections

I've already noted that the James Madison Center (who represented plaintiff in the WRTL case) has taken the position that the FEC should exempt from disclosure ads entitled to the "as applied" FEC exemption. Richard Briffault and I have taken a contrary position, arguing that the FEC regulations should apply only to whether corporations and unions may use their treasury funds to pay for such ads.

Now, while perusing this page containing all the comments on the rulemaking submitted to the FEC, I see that Chamber of Commerce, AFL-CIO/AFSCME/SEIU, and National Association of Realtors have taken the same unfortunate position on disclosure as the James Madison Center.
UPDATE: See Bob Bauer and the BNA Money and Politics Report ($). The latter quotes FEC Commissioner Mason as follows: "The FEC commissioners, meanwhile, indicated that their toughest task could be figuring out just which ads are covered by any type of campaign finance rules. These rules could address both disclosure and possible continued funding restrictions for ads that are determined to relate solely to elections. The main problem is that the Court's plurality opinion, written by Chief Justice John Roberts 'is just not a bright-line test,' said Mason, the FEC vice chairman."

I certainly agree that Roberts principal (not plurality) opinion is difficult to interpret at the edges. I have just posted an updated version on SSRN of Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review (forthcoming April 2008).

"Voting chief defends approval of Georgia's voter ID law"

AP offers this very interesting report. I presume that Congress's reversal of Reno v. Bossier Parish in the VRA renewal would therefore change the way the DOJ would have approached consideration of preclearing the GA voter id law.

Also of note in the article: "Tanner told The Associated Press on Thursday that he does not know whether the Justice Department will weigh in with a brief supporting or opposing the Indiana law."

"UPDATE: No charges filed in Clark County vote-fraud case"

See this news from Indiana.

Access Draft of Sen. Nelson Complaint Against DNC on Washington Post Web Page

You can find it here. UPDATE: Ed Still has the complaint and exhibits here.

Obama Derails vote on von Spakosvky; What's Next for FEC Nominees?

So reports ($) Roll Call this morning.

So what happens next? Sen. Obama might give up his opposition to please the Democratic Senate leadership (one of the nominees is close with Sen. majority leader Reid). That seems unlikely, given that Sen. Obama's decision, as a presidential candidate now, has implications in that arena, as a signal of both Obama's willingness to stand up to the Senate leadership and about his commitment to civil rights. It is also possible that Republicans will give up on von Spakovsky and allow a vote on the other nominees. That could well happen, given that Democrats currently have a 3-2 majority on the FEC (though it does take four votes to get certain things done).

If no deal is reached, the recess appointments of Von Spakovsky, Lenhard and Walther will end soon, I believe at the end of this calendar year (someone please write and correct me if I'm wrong). This would leave the FEC with two commissioners, Democrat Weintraub (who is only staying in her seat because the Senate has not voted on her replacement, Cyndi Bauerly) and Republican Mason (who is also staying beyond his term and is waiting for reappointment).

What a mess.

"Who's Giving Money to Bill Clinton?"

Matthew Yglesias has written this LA Times oped, with the subhead: "The former president should disclose his foundation's backers before his wife goes up for election."

Lopez Torres Roundup

Howard Bashman has one here. See also Bob Bauer. UPDATE: See this recap at SCOTUSBlog.

"Effect of voter ID law is uncertain"

The Munster Times (Indiana) offers this report.

"Time for the Scythe"

This NY Sun editorial discusses McCain-Feingold and public opinion.

The Separate Vote Plan for von Spakovsky Sounds Like It Still Might Fall Apart

See here.

"Senator Suing Own Party Over Discord on Florida"

The NY Times offers this report, which begins: "Senator Bill Nelson of Florida is to file a federal lawsuit Thursday accusing the Democratic National Committee of violating the constitutional rights of four million of the state's voters by refusing to seat its delegates at the party's national convention next summer."

"A Taste of '08 in Fight to Split Electoral Votes"

The NY Times offers this report on the California electoral vote initiative.

"One Lawmaker, Many Votes"

This news story from Texas about multiple legislative lawmaking should be embarrassing for Texas legislators.

von Spakovsky Nomination Apparently Will Be Brought Up for a Separate Vote Before Senate Thursday; More Letters in Opposition Sent to Senate

See here, here, and here.

AP Report on Oral Argument in Lopez Torres

From this report, it sounds like a reversal of the Second Circuit is likely. When the oral argument transcript is posted later today, I'll link. UPDATE: The transcript is here.

"Democratic group accuses Giuliani of money laundering"

This report begins: "SACRAMENTO -- A Democratic group on Monday filed formal complaints with the Federal Election Commission and the U.S. Department of Justice, accusing Republican presidential candidate Rudy Giuliani of violating campaign laws, including money laundering. The complaints, made by Californians for Fair Election Reform, accuse Giuliani, through his friend Paul Singer, of establishing a Missouri 'front' organization to solicit illegal donations to support a ballot measure that would overturn California's winner-take-all system of allocating electoral votes."

"Census could boost impact of illegal immigrants"

See this report originally appearing in the San Jose Mercury News.

"High court can regain ground; strike voter ID"

Cynthia Tucker has written this Atlanta Journal Constitution column. See also this report from the Marion Chronicle-Tribune (Indiana).

Did McCain-Feingold Keep Newt Gingrich from Running for President?

The debate continues here, here, and here.

"Further Testing Could Provide Increased But Not Absolute Assurance that Voting Systems Did Not Cause Undervotes in Florida's 13th Congressional District"

GAO has issued this report (via the Brad Blog). See also this Roll Call report, which includes the following piece of news: "Jennings, who seems to have given up on challenging the election results in court, announced in July that she is seeking a rematch with Buchanan in 2008." (The news is Jennings' apparent abandonment of court action, not the rematch expectation.)

"Back-Scratching Across the Aisle"

The NY Times offers this editorial on the von Spakovsky nomination to the FEC.

"The Supreme Court and Election Law: In Search of Doctrinal Specificity"

Ned Foley has posted this commentary [corrected link] at EL@M. It begins:

The Supreme Court opened its term yesterday with an election law case, Washington State Grange v. Washington, and it will hear oral argument in another one tomorrow, New York State Board of Elections v. Lopez Torres. Last week, it added a third to its calendar, Crawford v. Marion County Election Board, better known as the Indiana voter identification case, which instantly overshadowed the others and became one of the handful of cases that Court-watchers will watch most closely.

All three cases share a common attribute: they will be challenging for the Court because they each require distinguishing when one burden is too much, when another is not, based on nothing more than the vague phrases of the Constitution's equality and liberty guarantees. Take the voter identification for purposes of illustration. Although some of the rhetoric surrounding the case might make one think any voter identification requirement is inherently evil, or inherently innocuous, depending on one's point of view, the truth of the matter is the determining the constitutionality of specific voter identification laws will require a much more nuanced analysis, focusing on the factual details of the particular law at issue.

" James Madison Center Appeals 9th Circuit's Decision Upholding Expenditure Limits on University Student Candidates’ Campaign Speech"

Via email comes a press release which begins: "Lawyers for the James Madison Center today filed a petition for a writ of certiorari, asking the Supreme Court to consider an appeal of the Ninth Circuit's decision in Flint v. Dennison, 488 F.3d 816 (9th Cir. 2007). Applying the lowest level of scrutiny, the Ninth Circuit ruled that expenditure limits of $100 for campaigns for student government offices at the University of Montana's 10,000 student Missoula campus reasonably serve the University’s educational interests."

I am predicting a cert. denial. I believe even most of the Justices on the deregulation side of the campaign finance issue will see a difference in student elections related to the educational mission of the school.

Reports on Washington Top Two Primary Case

See reports in the Seattle Times, CQ, Washington Post, and Slate (Dahlia Lithwick).

See also my earlier post, Washington State Likely to Lose Top-Two Primary Case.

"Voting Rights Act provision could face U.S. Supreme Court scrutiny"

The Hill offers this report on the NAMUDNO oral argument. A snippet: "A GOP source close to the reauthorization contended that some Section 5 opponents chose to vote in favor of the bill with the belief that it would be struck down in federal court."

"FEC Rulemaking After WRTL Opinion Focuses on Disclosure of Ad Funding"

Following up on this post, BNA Money and Politics Report offers this report, which begins: "Differences over whether to require disclosure of the funding sources for political advertisements highlighted public comments submitted to the Federal Election Commission about a new regulation expected to be in place for the upcoming campaign season." Meanwhile, the Center for Competitive Politics takes a more moderate position on disclosure in its comments than the position taken by the James Madison Center. The comments I've written with Richard Briffault are here.

"Reasonable Voter ID Laws"

The Washington Times offers this editorial urging the Supreme Court to uphold the Indiana voter id law. A snippet: "Indiana's voter ID law is no harsh regulation. It includes ample exceptions to the ID requirement, including waivers for those who object to being photographed on religious grounds and voters who are too poor to pay for a driver's license. The state also issues free government identification cards for indigent non-drivers, and residents age 65 and older are eligible to vote via absentee ballot. These measures allow further flexibility and accommodations for voters with special needs."

I would remind readers of a counterpoint I raised in my Washington Post oped: "Although the law allows someone to file an 'indigency affidavit' in lieu of producing ID, the process is burdensome. A poor voter in Gary, for example, would have to cast a provisional ballot at a polling place, then make a 30-minute car trip within 10 days to file an affidavit in the county seat. There's no public transportation or government subsidy available to help the voter get there."

"Real Judicial Elections"

The NY Times offers this editorial on the Lopez-Torres case to be decided heard by the Supreme Court tomorrow.

For more about the case, check out this page prepared by my student Scott Street for SCOTUSwiki, the new companion site to SCOTUSBLOG.

"Democrats want feds to investigate electoral college ballot effort"

The SF Chronicle offers this report.

CLC and Other Reform Groups File Comments in FEC post-WRTL Rulemaking

See here.

Marty Lederman: International Man of Mystery

On the newly redesigned SCOTUSBlog, what's up with Marty Lederman's picture? He's not here either. I've met him---even written a brief with him---and can confirm he does in fact exist.

Bauer on the Washington Top Two Case

Here.

"Trippi Defends Edwards' Funding Decision"

See this post at "The Fix" (WaPo).

"Newt Gingrich's Non-Campaign: Things That Make You Go Hmm"

Following up on this post, see this item, at The Gate (National Journal). UPDATE: Bob Bauer weighs in.

4th Circuit Decides Virginia Open Primary Case, Affirming Lower Court

You can find the opinion here. It begins: "Three officials of the Virginia State Board of Elections (collectively, 'the Board') appeal a district court order holding that Virginia's open primary law, Va. Code Ann. s 24.2-530 (2006), is unconstitutional as applied to the 11th Senatorial District Republican Committee and its chairman, Larry Miller, and enjoining the Board from requiring the Committee to hold an open primary in Virginia's 11th Senatorial District in 2007. The Committee cross-appeals another portion of that order holding that § 24.2-530 is not facially unconstitutional. For the reasons that follow, we affirm the district court order in its entirety."

Washington State Likely to Lose Top-Two Primary Case

One of the terrific administrative changes made by the Supreme Court this term is the availability of oral argument transcripts the same day as the actual argument. I've had a chance to read quickly through this transcript in today's Washington State "top two" primary case, and it seems pretty clear that the State is going to lose this case on grounds that this is an impermissible end-run around California Democratic Party v. Jones. As Justice Scalia put it (transcript at 46): "the State's interest was to -- to do what we disapproved in Jones without seeming to do what we disapproved in Jones." In other words, it violates the parties' associational rights under Jones to let candidates run with a party label against the wishes of the party. Chief Justice Roberts analogized this to a trademark issue, and the diluting of the Republican and Democratic brand (a similar analogy I used in when quoted in this Roll Call article).

From the questions, it appears that Chief Justice Roberts, along with Justices Alito, Kennedy, and Scalia are prepared to strike down this law as a First Amendment violation. Justices Thomas and Breyer did not ask any questions, but given his past votes I think Justice Thomas is likely to vote to strike this down as well. If that's right, I am still confused why the Court granted cert. in this case, given that the Ninth Circuit reached the conclusion likely to be reached by a majority in this Court.

If the case goes as I expect, it is not clear that a nonpartisan primary is the only way to go. There is one other possibility: have a nonpartisan primary that uses party labels except for those parties which object. That was the approach we took in Prop. 62 (text here), which was on the California ballot in 2004 (for more analysis, see here). It would be useful if there were some dicta in the Supreme Court's opinion expressing a view as to whether or not this solution might work.

For more coverage of the oral argument, see this AP report and this report by Richard Winger.

"Justice Souter: Campaign Finance Law's Emerging Egalitarian"

I have posted the following draft on SSRN (forthcoming Albany Government Law Review). Here is the abstract:

This Essay, written for the inaugural issue of the Albany Government Law Review, explores the campaign finance jurisprudence of Justice Souter. Justice Souter wrote many of the Supreme Court's recent opinions upholding a variety of campaign finance regulations. I suspected that his attempt to harmonize his deferential approach with prior precedent was done to please Justice O'Connor, a decisive fifth vote in many of these cases. Justice O'Connor's retirement and replacement with Justice Alito has brought a shift in the Supreme Court's campaign finance jurisprudence toward deregulation, relegating Justices Ginsburg, Souter, Stevens and Breyer to the minority. This shift to the minority has freed Justice Souter to some degree to express his own views of the appropriate balance between the First Amendment and other interests in the campaign finance cases (though he still may be tempering his own views somewhat to remain consistent with his earlier opinions). His recent dissenting opinion in FEC v. Wisconsin Right to Life is the clearest exposition yet of Justice Souter's jurisprudence in the area, unencumbered by the need to capture a fifth vote.

As this Essay argues, Justice Souter's jurisprudence as expressed in WRTL demonstrates an emerging egalitarian view of campaign finance law. It is a view that is broadly consistent with Justice Breyer's “participatory self-government” rationale for campaign finance regulation but more deferential to legislative branches about the means of achieving political equality. Though there were elements of egalitarianism in Justice Souter's earlier opinions, WRTL goes further. But the Justice's egalitarian ideas are not yet fully formed, and there is room for questioning some of his implicit arguments and assumptions.

Part I of this Essay describes Justice Souter's campaign finance views expressed in cases while Justice O'Connor remained on the Court. Part II turns to Justice Souter's freer approach in WRTL. It first gives relevant background about the WRTL case. It then describes Justice Souter's views in dissent, which sets forth a view of the government's compelling interest in promoting "democratic integrity." It then argues that the "democratic integrity" interest, though couched in some anticorruption language, actually expresses a nascent egalitarian approach to campaign finance regulation. The Part concludes by noting that, unlike Justice Breyer, Justice Souter has been insufficiently attentive to the problem of incumbency protection in campaign finance regulation. In addition, Justice Souter has yet to fully explore three issues in his emergent egalitarian approach related to (1) his critique of total campaign spending; (2) his views on the connection between campaign spending and public cynicism about the political process; and, most importantly, (3) his treatment of labor unions.

"Measure reflects GOP angst"

The San Jose Mercury New offers this report, which begins: "It's little wonder that most Republicans embraced the proposed ballot measure that would allocate California's 55 electoral votes to the winner of each congressional district. After all, an extra 20 to 22 electoral votes - the number of districts favoring the GOP - could ensure that a Republican remains in the White House. And even though that measure seems to have been derailed by the resignation of two of its key backers last week, political observers say the issue stirred up something much more complex: a deep and growing sense of hopelessness and frustration among California Republicans - largely white, male and rural - who view their status as increasingly irrelevant in a state known for its rapidly changing demography and complex multicultural lifestyle."

Newt Gingrich Blames McCain-Feingold for Abandoning Possible Presidential Bid

See here. Meanwhile, Christian conservatives, not happy with a possible Giuliani Republican presidential nomination, threaten a third party run.

"Let the Most Popular Candidate Win; Instant Runoff Voting is Simple and Effective"

Former presidential candidate John Anderson has written this oped in the Christian Science Monitor.

More News and Commentary on Supreme Court Voter ID Decision

Though the Court just granted cert. last week, the Indiana voter id case has become one of the most talked-about cases on the new October docket. Writing in the New York Times, Linda Greenhouse notes the danger of the cert grant (as I mentioned here): "Although the justices granted the case at the request of the Indiana Democratic Party and the American Civil Liberties Union, the action could well prove to be an example of 'watch out what you wish for' if the result is to uphold the statute at issue and to encourage other states to follow Indiana's lead."

The Washington Post preview is here, with this sidebar listing Crawford first. See also this LA Times preview and this BBC preview. And in this NY Times editorial from the weekend, the newspaper writes:

The court's hyperpartisan approach to the law is unhealthy. The reason the Bush v. Gore ruling was so damaging to the court’s reputation was that the justices appeared to be acting as partisans, tossing aside long-held views to reach the political result they wanted. Today, the justices seem just as political, wrapping their views on controversial social issues in neutral-sounding legal doctrines.

The case that will most test the court's ability to rise above partisanship is a challenge to Indiana's voter ID law. Indiana is one of a growing number of states that require voters to present a government-issued photo ID. Such laws have been billed as anti-vote-fraud measures, but there is little evidence of vote fraud at the polls. The Republicans who have pushed these laws are trying to make it hard for poor and minority voters, who are less likely than other groups to have drivers' licenses -- and more likely to vote Democratic -- to cast ballots. The court has traditionally championed voting rights, but a conservative majority may boost Republican chances in 2008 by endorsing this disturbing barrier to voting.

On Wednesday, the court will hear arguments in another voting case of particular interest to New Yorkers, a challenge to the use of judicial conventions, undemocratic institutions dominated by party hacks, to select state court judges. Lower courts rightly held this highly undemocratic system to be unconstitutional.

On this last case, Lopez-Torres, see the draft of Chris Elmendorf's ELJ preview available here and this lengthy report in Judicial Reports.

Bauer and Campaign Legal Center File Joint Letter (!) in WRTL Rulemaking

Via this blog post comes word that Bob Bauer and the CLC have filed these comments taking the position that the WRTL rulemaking creating an as applied exemption should not extend to disclosure rules. It follows comments Richard Briffault and I filed on this subject on Friday and in opposition to somecomments of the James Madison Center. Writes Bob: "As the CLC and I argue in our joint comments, views may differ on the merits or the constitutionality of disclosure in this instance or others. It is not an issue without consequence, however, and it is neither settled by WRTL, nor ripe for Commission consideration and decision in a rushed proceeding, the purpose of which is to comply with the clear terms, which do not include disclosure, of the Court's ruling."

"Court opens term with First Amendment case"

Tony Mauro has written this article for the First Amendment Center, focusing on the Washington Primary case. See also this Roll Call report ($) on the case , which quotes, among others, Joe Birkenstock, whose preview of the case (uncorrected proof) in the Election Law Journal is available here.