Larry Noble Says WaPo Quote about Obama PAC Taken Out of Context

See here.

Richard Winger on North Carolina VRA Cert Petition

See here.

"Bay Area mail ballots to be big factor in February, poll indicates"

The SF Chronicle offers this report. See also here and here.

"Texas legislation targeting non-citizen voting planned"

The Dallas Morning News offers this report.

"Court asked to halt ruling on elections"

AP offers this report, which begins: "A federal appeals court has been asked to delay requirements that Mississippi adopt a party registration system and enact a voter identification law in time for the 2009 elections."

"Obama Campaign Worker Discussed PAC Donations"

The Washington Post offers this interesting report.

Sticking Up for Vote Buying

See here.

"Mayoral election recount to start Monday"

See this news from Terre Haute, Indiana, which begins: "Although a local judge set a date Thursday to hear a challenge in the city's mayoral race results, the Indiana Supreme Court may prevent that from ever happening. Judge David Bolk of Vigo County Superior Court Division 3 set the trial for 1:45 p.m. Dec. 17 for Mayor Kevin Burke’s challenge of the election he lost to Mayor-elect Duke Bennett. Bolk also said the recount will start at 9 a.m. Monday. But James Bopp Jr., Bennett's attorney, on Thursday afternoon filed two mandate actions with the Indiana Supreme Court to overrule Bolk."

"Absentee Ballots Not Counted"

The Cincinnati Enquirer offers this report.

"Virginia GOP Gets Strict on Voting; Demand for Loyalty Pledge at Primary Targets Crossovers, Independents"

The Washington Post offers this report.

"Will The 2008 Vote Be Fair?"

PBS's NOW will feature this program tonight, and it will be available after tonight on the website. Here is the description: "How safe is your right to vote? Former Justice Department official and voting rights lawyer David Becker, who worked under both President George W. Bush and former President Bill Clinton, alleges a systematic effort to deny the vote to hundreds of thousands, possibly millions, of Americans. In a revealing interview with NOW's David Brancaccio, Becker openly worries that the 2008 election will not be free and fair. Is our government part of the solution, or part of the problem?"

Electionline Releases Major New Report Analyzing HAVA at 5 Years

You can find the report here. Key quote from Doug Chapin in the accompanying release: "HAVA undoubtedly brought the change to American elections that many sought after the 2000 election...But the public's lingering concerns over electronic voting, partisan disputes over voter ID and other issues continue to plague America's election system." My own assessment of the state of election administration since the 2000 Florida controversy is here.

"A Major Question before the FEC: SpeechNow.Org's Case for Independent Activity"

Bob Bauer has written this post on this request for an advisory opinion by a new group seeking to push the question of the constitutionality of certain independent expenditure committee activity. Bob's right that this process could be very important. I expect the issue of contribution limits to independent expenditure committees to reach the Supreme Court soon, though not necessarily through this case or within time for the 2008 elections.

"Disclosure of ballot campaign donors sought"

The LA Times offers this report, which begins: "Backers of two campaigns to change California law are crying foul over donations to their opponents made through nonprofit groups that can hide the origin of the money. In their separate protests, organizers of ballot measures to change term limits and restrict governments' use of eminent domain have highlighted a growing trend: the use of tax-exempt entities to finance political campaigns in a way that withholds from voters the identities of financial backers. In response, a coalition that includes the Howard Jarvis Taxpayers Assn. has proposed an initiative to prohibit some nonprofits from contributing. And the watchdog group California Common Cause has asked the state Fair Political Practices Commission to consider new regulations."

"Recount Ordered in Close Muncie Mayor's Race"

AP offers this report from Indiana.

"Audit Finds Voting Issues; State driver, death, felony records won't be accessible by February's primary"

The Milwaukee Journal-Sentinel offers this report.

Robert Dahl Reviews Eric Lane and Larry Sabato Books on the U.S. Constitution

See here.

"Eleventh Circuit grants rehearing en banc in case where a divided three-judge panel of that court had ordered a trial on a Section 2 vote dilution claim from Glades County, Florida"

Howard Bashman has the news. My post on the three judge panel decision was entitled In Important Case that Could End up at the Supreme Court, 11th Circuit, on 2-1 Vote, Orders Trial on Section 2 Vote Dilution Claim from Glades County, Florida.

"Aloha! DoJ Voting Chief is Frequent Flier"

See this interesting post at TPMmuckraker.

Bauer on the Foley-Smith Voter ID Debate

Here.

"Book Launch for 'Goldfeder's Modern Election Law.'"

Book Launch for "Goldfeder's Modern Election Law."
New York County Lawyers Association, 14 Vesey Street, Manhattan
Monday, December 3, 2007 6 to 7:30 pm.
Books available for purchase, or go to www.nylp.com

RSVP vfeliciano@nycla.org

"Dispute Over Election to Replace Lott Could Wind Up in Court"

Roll Call offers this report ($).

"Losing Candidate Alleges Fraud"

The Philadelphia Daily News offers this report.

"Efforts increase to enfranchise U.S. citizens abroad"

The International Herald Tribune offers this report, which begins: " For Americans abroad, who often feel underrepresented, overlooked and little appreciated in the United States, the approach of the 2008 elections has brought some grounds for hope that this time their votes have a better chance of being counted."

"Quality of Election Administration Varies Among Great Lake States (Forthcoming Report: From Registration to Recounts)"

This Election Law & Moritz commentary previews an important new work by the Center. As Steve Huefner, Dan Tokaji, and Ned Foley explain: "For the past year and a half, Election Law @ Moritz has conducted a comprehensive study of the election systems of five key Midwestern states: Ohio, Michigan, Wisconsin, Minnesota, and Illinois. The results of this study, From Registration to Recounts, will be released in both hard copy and electronic formats on December 4, one week from today. The results provide both some encouraging signs and some persistent reasons for concern."

"Midwest Democracy Network Releases Responses to Presidential Candidate Questionnaire"

This press release begins: "Today the Midwest Democracy Network (MDN) – a nonpartisan alliance of 20 civic and public interest groups from Illinois, Michigan, Minnesota, Ohio and Wisconsin – released former U.S. Senator John Edwards' and U.S. Senator Barack Obama's full and unedited responses to a detailed questionnaire on federal political and government reform issues. The questionnaire, sent to all the Republican and Democratic presidential candidates on September 11, covers campaign finance, government ethics, communications policy, election laws, voting rights, and congressional redistricting." You can find the answers here.

Eckstein on Redistricting

Paul F. Eckstein has written Musings on Redistricting Litigation for Litigation magazine (ABA membership required to access the article). Thanks to Michael Solimine for the link.

BeVier on WRTL II

I very much look forward to reading this piece by Lillian BeVier in the recent issue of the CATO Supreme Court Review. (HT: Bob Bauer). I am in the process of working on edits of my Minnesota Law Review article on the case, including incorporating the recent developments in the FEC rulemaking.

Scott Street offers more analysis of Lopez-Torres

Here at SCOTUSwiki.

"Voter ID: What's at Stake?"

Brad Smith and Ned Foley debate the Crawford case here at PENNumbra, the Penn Law Review's online companion. Ned will soon have a more extensive Election Law Journal case preview on the case. (Disclosure: I filed an amicus brief in the case.)

"Lobbying lucre awaits Lott"

The Politico offers this report.

"GOP seeks recount in close Muncie mayor's race"

AP offers this report from Indiana. A snippet: "David Brooks, an attorney for the Republican Party, said the county GOP had amassed evidence of vote fraud, but did not give other details."

"Daniel Weintraub: Term limits reform: Good idea, but not in a vacuum"

See this Sacramento Bee column.

When Will the Mississippi Governor Have to Call the Special Election for Sen. Lott's Seat?

There is alreadycontroversy over the date for a replacement election for Senator Lott. Gov Barbour has issued this statement setting the date for Nov. 4, 2008. But The Hill reports : "The timing of Sen. Trent Lott's (R-Miss.) resignation has opened legal questions about the date of the special election, which state officials were still trying to clarify Monday afternoon. Gov. Haley Barbour (R) said in a statement Monday that he would schedule the special election for the same day as the November 2008 general election. State law, however, appears to require an earlier date if Lott retires this year, as he said he would."

The relevant Elections Code provision is here. I agree with the reporter from The Hill that if Sen. Lott retires this year (as he has an incentive to do to be able to lobby his colleagues in one year, rather than two under the new lobbying law), Gov. Barbour would have to call an election in early 2008, not November. As I read the statute, the Governor has 10 days to issue a proclamation setting a special election after receiving official notice of the vacancy, and it must be set within 90 days from the time of the proclamation. The only exception to this rule applies when "the vacancy shall occur in a year that there shall be held a general state or congressional election." In that case, the election is set for the same as the general election date. So the key question is the date of the "vacancy," not the date of the official notice or the date of the proclamation of the special election. If Lott indeed resigns in 2007, the vacancy is in 2007 and the election must occur under the 10/90 day rule described above.

Thanks to DavidNYC for sending me the relevant links.

"Get paid to post positive comments about Hillary"

This is interesting. Be sure to read the "update."

"Woes of the Millionaires--and Problems for the Amendment Bearing their Name"

Bob Bauer has written this new post.

"Obama PAC Is Active In Key Election States"

The Washington Post offers this report.

"Mail-in ballots shaping plans of campaigns"

The San Diego Union Tribune offers this report.

"Editorial: Vote fraud wild goose chase doesn't need Ohio attorney general's participation"

The Cleveland Plain Dealer offers this editorial.

"Editorial: State's top court sides with politics over voters"

The Traverse City Record-Eagle offers this editorial, which begins: "They've done it again. The Michigan Supreme Court's Engler Majority, in its never-ending quest to prove that justice not only isn't blind but in fact views everything through a lens, has again created law out of whole cloth. This time, the beneficiaries were the Republican and Democratic parties; the losers were the rest of us."

"Short of Money, G.O.P. Enlists Rich Candidates"

The NY Times offers this report.

"Voting Machine Mess Can't Just Be Fixed by Congressional Bills"

Norm Ornstein has written this Roll Call oped. It concludes: "What to do? Frankly, we can't count on Congress to solve the problems, at least in the foreseeable future. We need a patriotic intervention by Steve Jobs and his talented team at Apple, the geniuses who created intuitive, user-friendly, reliable and elegant successes like the iMac, the iPod and the iPhone, or by Eric Schmidt and his brilliant team at Google. Voting machine technology is not inherently intricate or technologically difficult. For a relatively small investment, Apple or Google could certainly create a voting machine that would be reasonable in price, easy to use, able to handle the long and often complicated ballots, easy to keep from hacking, and able to produce a clean paper ballot to be optically scanned, counted and preserved. If Apple or Google --or both--stepped up to the plate to give us the iVote or Voogle, they could save the credibility of American democracy."

"FEC rules could bring more ads, uncertainty"

The Politico offers this report.

"Secretary of State should resign, GOP chair says"

The Minneapolis Star Tribune offers this report, which begins: "The chairman of the state's Republican Party on Wednesday called for Minnesota Secretary of State Mark Ritchie to resign, saying revelations that Ritchie used a taxpayer-funded mailing list to solicit political contributions raised questions about his ability to lead as the state's chief election official."

"Campaign Finance Law and What We All Know"

Bob Bauer has this post reflecting on the state of federal campaign finance law.

"Back to the Same Old Debate"

Andrea Neal has written this column on the electoral college in the Indianapolis Star.

"McCain-Feingold's Wealth of Hypocrisy"

George Will has written this Washington Post column on FEC v. Davis. My earlier coverage of the case is here. The government's response to the jurisdictional statement is now not due until mid-December.

"Immigrant Paperwork Backs Up At DHS; Delays May Deny Vote to Hundreds Of Thousands"

The Washington Post offers this front-page report.

"California proposal in play could sway 2008 presidential election"

AP offers this report.

Final Text of FEC's WRTL Rule

You can find it here. The rule refers to examples of permissible and impermissible communications that are supposed to be "available on" the FEC website. But so far I can't find them there.

"Backers of California Initiative to Allocate Electoral Votes Voice Growing Optimism"

CQ Today offers this report.

"Michigan Court OKs Early Primary"

AP offers this report. If anyone has a link to the opinion, please pass it on. UPDATE: Thanks to Franco Mattei for sending along this copy of the court's opinion. UPDATE 2: The New Hampshire Primary appears likely to take place on January 8, 2008, a week before Michigan and 5 days after the Iowa caucuses.

"Homeless Given Food To Sign Ballot Petitions"

The LA Downtown News offers this report. In this follow-up on The Caucus (NY Times political blog), we learn that "The chairman of a committee formed to fight a Republican-supported ballot initiative to change how California's electoral college votes are apportioned has asked the city attorney here to investigate a report that a group collecting signatures for the initiative has offered food to homeless people in exchange for signing the petitions."

"The Good the Bad and the Ugly of Term Limits in California"

The Center for Governmental Studies has issued this press release about this new report, which analyzes term limits in California and the expected effects of Prop. 93, which would change term limits rules in the state.

"New FEC Rule Receives Mixed Watchdog Review"

The Hill offers this news update. More from Bob Bauer, who notes: "Congress once had in mind a sweeping ban, admitting few exceptions, and now, after WRTL, the ban has been weakened into a rule requiring the agency to make case by case 'determinations' on 'issue ads' under indefinite standards."

"Ruling Will Cripple Probes Of Lawmakers, U.S. Says"

The Washington Post offers this report, which begins: "A little-noticed aspect of an appellate court decision could sharply limit investigations of members of Congress and hamper ongoing corruption probes, the Justice Department said this week in a motion seeking an emergency stay of the ruling." Another snippet: "The ruling bars investigators from even 'cursory exposure to legislative materials without a Member's consent,' Justice Department attorneys said in their brief."

"Democrats Move to Block Bush Appointments"

The NY Times offers this report.

"S.F. lawsuit accuses Nebraska vote machine vendor of fraud"

The SF Chronicle offers this report.

"FEC Eases Rules on Ads Before Elections"

AP offers this report, which references this earlier blog post of mine. See also In Wake of Court Ruling, FEC Makes Financing Rule Change Official on one of the Washington Post's political blogs. Democracy 21 has issued this statement. Public Citizen has issued this statement. Paul Ryan offers these thoughts at the CLCblog. More to come.

"Huge FEC Fine Leaves Larger Financing Issues Unresolved"

CQPolitics offers this report.

"The Most Important Election Case Since Bush v. Gore?"

Steven Rosenfeld has written this article for AlterNet on Crawford, the Indiana voter identification case.

"Provisional Ballot Problems Widely Reported in 2006, New Report Finds"

Demos has issued this press release, which begins: "Provisional ballots were a significant source of voter frustration and administrative problems at polling places during the 2006 election, according to a new report, A Fallible 'Fail-safe': An Analysis of Provisional Balloting Problems in the 2006 Election. The new study, published this week by the non-partisan public policy center Demos, underscores significant concern over provisional ballot implementation, a topic that has been the subject of recent hearings in the United States House of Representatives." The report itself is here.

More on Florida law, DOJ and Commissioner von Spakovsky

See this post on TPMmuckraker.

Corporate Funded Sham Issue Advocacy Will Soon Hit Election 2008; FEC Votes to Adopt Modified Version of the Lenhard Amendment for WRTL; Rejects Extension to Disclosure Provisions

I don't yet have a copy of the text as finally adopted, but I understand that the Lenhard amendment (see here), with a tweak related to the non-safe harbor portion of the test, was adopted by the FEC. The FEC also voted 4-1 to make this an exemption that applies only to the question of whether corporations or unions can pay for the ads with general treasury funds. Only Commissioner von Spakovksy voted in the end to extend this to the disclosure requirements. (Commissioner Mason initially supported this position too, but changed his vote in the end).

So what does this mean? The worst outcome, as I argued with Richard Briffault here, would have been to extend the exemption to the disclosure requirements. That option failed.

But we now have a very, very broad exemption related to corporate and union spending. To make things clear, the following three examples, which I blogged about last week, will fall into the safe harbor for ads that can be paid for with corporate or union treasury funds:

"Call Sen. Clinton and tell her to stop coddling illegal aliens and terrorists by supporting the NY drivers' license plan."
"Call Mitt Romney and tell him more of our soldiers shouldn't die in an unnecessary war in Iraq."
"Call Rudy Giuliani and tell him that his support for gay rights is ruining the moral fabric of this country."

My prediction is that most corporations or unions (or, more likely, the organizations they give to) will run ads that fit safely in the safe harbor. There won't be a need to go out of the safe harbor to run hard-hitting and effective election-related ads subject to the exemption.

The FEC will have to deal with ads out of the safe harbor coming from two classes of corporate and union entities: (1) entities represented by people like Jim Bopp who will set up test cases to push the law further; and (2) entities that don't understand how easy it is to comply with the law through using the safe harbor.

While the Lenhard version will create some uncertainty on the edges, it is not fair to blame the agency for creating a wide loophole. As I've argued in great detail here, that's exactly what Chief Justice Roberts and Justice Alito were trying to accomplish in the principal opinion in WRTL.
UPDATE: More reflections from Bob Bauer and Paul Ryan.

"Court Takes Alabama Voting Rights Case"

AP offers this report, which begins: "The Supreme Court agreed Tuesday to review a voting rights dispute from Alabama in which the governor filled a county commission vacancy by appointing a Republican to represent a heavily Democratic district." SCOTUSBlog links here to some of the Supreme Court documents in the case.

This news is likely to be buried given the other case the Court agreed to hear today: the Second Amendment case from D.C.

Commissioner Lenhard Proposes Compromise WRTL Draft for Consideration at Today's FEC Meeting, Underway Shortly

I have posted it here. You can find the meeting agenda here (apparently I sometimes can post FEC documents faster than the FEC itself). UPDATE: It didn't take long for the CLC to oppose the Lenhard compromise.

"Another 'Cost of Doing Business' Fine for Media Fund's 527"

Fred Wertheimer and Gerry Hebert have written this new post at the CLC Blog.

"No rubber stamp for Bush's FEC nominee"

Gerry Hebert has written this oped in the Politico on the von Spakovsky nomination.

"Free Paul Jacob"

Jacobs' statement is here at the website "Free Paul Jacob." See also this editorial in a local Muskogee, Oklahoma newspaper. Thanks to Robbin Stewart for the pointers.

More on WRTL in Advance of Today's Meeting

The Hill offers FEC decision could launch attack ads, watchdogs warn.

Forbes offers FEC to Decide Rules on Campaign Ads.

And Bob Bauer writes The Choice (or None) that the FEC Might Make on the WRTL Rule. Says Bob: "If the FEC cannot turn out a rule reasonably faithful to the Supreme Court's command, then it is not clear why any action is needed or constructive."

We'll know soon enough if there are four votes for a new rule.

"FEC slaps Media Fund with huge fine"

The Politico offers this report.

"Schwarzenegger sets California campaign fundraising record"

AP offers this report.

"Oklahoma's Most Wanted ; The latest thing in political felonies: a petition drive."

The Wall Street Journal offers this very interesting editorial.

More on Edwards/ActBlue

Here at DailyKos.

More WRTL Rulemaking Developments

FEC Commissioner Weintraub has released this alternative proposed language for the WRTL exemption regulation (see also this cover memo). The Campaign Legal Center has sent a new letter to the FEC, in part a response to Jim Bopp's letter of earlier this morning.

Jim Bopp Sends Letter to FEC Proposing Changes to Draft Final Post-WRTL Rule

Here is the letter. If Jim Bopp, Paul Ryan, and Bob Bauer all agree there is a problem with the FEC's rule (my own thoughts on it are here), let's hope the FEC is paying attention.

(It is worth noting that the era of the Internet gives the FEC a great opportunity to get immediate feedback on its proposed rules. Think of how much more information the FEC has now going into this meeting than it would have had in the days before these things could be posted and disseminated so quickly).

"The Trouble with the Proposed Final Rule in WRTL: and the Way Out (and Back)"

Bob Bauer has written this must-read post.

"Race is on to qualify Calif. electoral change"

The San Diego Union Tribune offers this report.

"Just Say No"

Eliza Newlin Carney's latest Rules of the Game column, this one on lobbying reform, is now available.

"Attorney: Officials to take 5th in voting irregularities case"

The Clarion Ledger offers this report, which begins: "Three Wilkinson County officials will take the Fifth Amendment if asked to testify in a bizarre election challenge that involves claims of voting irregularities, intimidation and racial overtones in the Democratic primary, an attorney said."

"Edwards' ActBlue haul could pose problems"

The Politico offers this report.

"Popular Election of the President: Using or Abusing the Electoral College?"

Jennifer Hendricks has posted this draft on SSRN. Here is the abstract:

Earlier this year, Maryland became the first state to adopt the Agreement Among the States to Elect the President by National Popular Vote. If states sign on to this agreement to control the Electoral College, they will all pledge their electoral votes to the presidential candidate who wins the national popular vote, without regard to which candidate won in each individual state. The compact would effectively supersede the Electoral College and implement popular election of the president without amending the Constitution. Political supporters of the Agreement have been curiously reticent to discuss the validity of the Agreement under Article I, section 10. Although some similar proposals would be invalid under section 10, the Agreement adopted in Maryland does not abuse the structure of the Electoral College, nor does it disrupt the balance of power among the states or between the states and the national government. The Agreement is therefore permissible and probably does not even require congressional consent.

"State investigating anti-Romney calls"

The Concord Monitor offers this report.

Bob Bauer Also Concerned about Proposed Final WRTL Rule

See here. See also this post on one of the Washington Post's political blogs.

"Court Rejects Early Michigan Primary"

AP offers this report.

In the Election Law Mailbag

Jerry Goldfeder, Goldfeder's Modern Election Law

Daniel Katz, Article I Section 4, The Voting Rights Act and the Restoration of the Congressional Portion of the Election Ballot: The Final Frontier of Felon Disenfranchisement Jurisprudence?, 10 University of Pennsylvania Journal of Law and Social Change 47 (2007).

Two on the CLC Blog

Paul Ryan has written Will FEC Proposed Rule Gut BCRA 'Electioneering Communication' Provisions? . Gerry Hebert has written von Spakovsky, Obama, and the Race Card.

FEC Nearing End of Post-WRTL Rulemaking; Expect New Flood of Sham Issue Ads; Disclosure Issue Still Unresolved

The FEC has released this draft final rule in the post-WRTL rulemaking. Actually, it still has two alternatives: one of which would exempt from disclosure ads subject to the WRTL exemption; the other which would not. Richard Briffault and I had submitted these comments to the FEC urging it not to extend the WRTL exemption to the disclosure requirements. It is unclear to me what the politics are about securing 4 votes for either position at this point.

On the scope of the exemption (assuming it passes), hereare three simple rules for a corporation or union that wants to spend unlimited sums supporting or opposing a candidate for federal office:
1. Don't mention the election, candidacy, political party, opposing candidate or voting
2. Don't speak directly to the candidate or officeholder's character, qualifications or fitness for office.
3. Do focus on a "public policy issue" and "urge the candidate" to take a position on the issue or contact the candidate on the issue.

Yes, my friends, sham issue advocacy is coming back in a big way (and potentially we won't even know which corporations and unions are bankrolling it).
So the following should be just fine under the FEC's soon-to-be adopted test:

"Call Sen. Clinton and tell her to stop coddling illegal aliens and terrorists by supporting the NY drivers' license plan."
"Call Mitt Romney and tell him more of our soldiers shouldn't die in an unnecessary war in Iraq."
"Call Rudi Giuliani and tell him that his support for gay rights is ruining the moral fabric of this country."

"Notes for a Discussion of Politics and Technology: How the FEC’s Internet Rules Will Change More than the Internet Rules"

Bob Bauer has this new extensive post.

Oral Argument in Crawford, the Indiana Voter ID Case, Set for January 9

See here.

"Most at NYU say their vote has a price"

The Politico offers this report, which begins: "Two-thirds say they'll do it for a year's tuition. And for a few, even an iPod touch will do. That's what NYU students said they'd take in exchange for their right to vote in the next presidential election, a recent survey by an NYU journalism class found."

Election Law Journal 6:4 Now Available; Preview of ELJ 7:1

You can find the table of contents for Election Law Journal 6:4 here. Look for ELJ 7:1 in January, featuring Frisina, Herron, et al. on the FL-13 undervote controversy, David Canon on the aftermath of Georgia v. Ashcroft, Ethan Leib on interpreting statutes passed through referendums, and Ned Foley previewing Crawford, the Indiana voter identification case.

"What to Do About Campaign Finance Loopholes"

Deborah Goldberg of the Brennan Center has this web-only comment at the Nation. It begins: "Let's set the record straight once and for all. The Supreme Court opened the soft-money floodgates in Wisconsin Right to Life v. Federal Election Commission last June, but it did not change disclosure rules. The real problem is that disclosure alone does not get us open, honest and accountable government, and closing every loophole won't either. What we need is public funding of federal elections, and we need it ASAP."

"The Weekly Standard Plays the Race Card"

The Carpetbagger Report offers this post responding to the Ed Blum article on Sen. Obama and FEC Commissioner von Spakovksy that I linked to earlier.

"Michigan Court of Appeals hears primary election appeal"

AP offers this report.

"Elections Canada faces climbing legal bill from Tory lawsuit"

See here.

"ACLU Seeks Va. Voter ID Material"

AP offers this report.

New Blog from the Rose Institute and Claremont McKenna College

This looks like an especially useful site for those interested in redistricting issues.

Ninth Circuit Decides Important Campaign Finance Ballot Measure Disclosure Case

I've only had a chance to briefly skim California Pro-Life Council, Inc. v. Randolph, but I have to say I'm troubled with my first impressions. It appears that the court has applied strict scrutiny to a set of disclosure laws applicable to ballot measure committees, and held that the ballot measure's detailed requirements for disclosures by PACs cannot be applied to at least some ballot measure committees. The court does appear to uphold basic contribution and expenditure reporting requirements. More later if I have time to study this in more detail.

"Is North Carolina Ready for Election Day 2008? Casting and Counting Ballots in the Tar Heel State since Bush-Gore"

This event, sponsored by North Carolina State University and RTI International, will be held on Nov. 30.

"Justice for Sale"

Justice O'Connor has written this oped for the Wall Street Journal.

"FEC to Change Rules on Ad Blackouts"

Roll Call offers this report ($), which begins: "The Federal Election Commission will vote Tuesday on new rules tailored around a June Supreme Court decision tossing out advertising blackout periods for some outside political groups in the weeks before federal elections."

"Opponents link Giuliani to voting initiative"

The Politico offers this report, which begins: "A proposed California ballot initiative affecting Electoral College vote-counting is setting off a proxy war between supporters of two presidential front-runners, Republican Rudy Giuliani and Democrat Hillary Rodham Clinton. "

"Still No Date for New Hampshire Primary"

Political Wire offers this report.

"Last Minute Loophole"

Martin Gold and Dimple Gupta have written this NY Times oped, which begins: "DESPITE news coverage of the lobbying reform law passed in September, one change to Senate rules has gone unnoticed, one that makes it easier for last-minute proposals to be inserted into legislation behind closed doors."

"Obama Plays the Race Card"

Ed Blum has written this Daily Standard piece on Sen. Obama and the von Spakovksy nomination.

At Least 23 Amicus Briefs Filed in Support of Petitioners in the Indiana Voter ID Case, Crawford

You can find the collection of briefs here. There are a number of notable briefs, including this brief from the Brennan Center, Demos, Lori Minnite, Project Vote and PFAW on the absence of evidence of impersonation voter fraud; this brief from three current and two former secretaries of state; this brief from Sen. Feinstein and Reps. Brady and Lofgren; and a number of academic briefs including: this brief by Professors Michael Alvarez, Lonna Rae Atkeson, Delia Bailey, Thad Hall, and Andrew Martin on voter id and turnout; this brief by 29 prominent historians and social scientists who write in the area of race and politics; this brief from Professors Chris Elmendorf and Dan Tokaji on the appropriate legal standard for evaluating these cases (my own brief on the subject, filed earlier with co-counsel Schulte Roth and Zabel is here); this brief on behalf of Frederic Schaeffer, Louis Massicote, Toby Moore, Graeme Orr, and others, argues that the requirements in other countries do not provide support for Indiana's voter ID law; and this brief by Professor Erwin Chemerinsky in support of neither party on the appropriate legal standard.

In conjunction with the filing of the amicus briefs, the Brennan Center issued a press release, New Study Finds African Americans, Low-Income Voters, Students and Seniors Least Likely to Have Valid Voter ID at Issue Before Supreme Court. It links to this new study by Professors Barrett, Nuno and Sanchez. See also this AP report.

The state's brief is due in early December.

"You Can't Predict, You Can Only Plan: More Lessons From Ohio"

Terri Enns has written this Election Law @ Moritz commentary.

"FEC Sets Special Meeting for Nov. 20 To Consider Funding Rule for Political Ads"

BNA Money and Politics Report offers this important report, which notes: "A draft of the final rule to be voted on by the FEC commissioners has not yet been released. It will take the votes of at least four commissioners to approve a rule. The six-member FEC is composed of three Democrats and two Republicans, with one vacancy."

"D.C. Circuit Votes 5-4 to Deny DOJ Bid To Rehear Jefferson Office-Search Case"

BNA Money and Politics Report offers this report ($), which states that the government has not decided whether or not to petition for cert. to the Supreme Court.

"Millionaires' Amendment Challenged"

Roll Call offers this report ($). My earlier coverage of this case is here. I expect the government's response, which was due yesterday, to be posted here.

"Campaigns raise stakes on nonprofits"

The LA Times offers this report, with the subhead: "Untraditional donation channels are expected to gain ground in 2008. They assure anonymity and do not impose caps."

"Dems profit as 113 campaign donors near $108K cap"

USA Today offers this report.

"Voting rights back on Justice's radar"

The Miami Herald offers this editorial.

" Voting devices get close scrutiny"

The Albany Times Union offers this report.

Richard Winger's Detailed Ballot Access News Report on Lopez Torres Now Available on Line

You can find it here. Richard's attention to detail in this story is a good illustration of why I am a subscriber to the print edition of Ballot Access News.

More Bauer on the NY Times Soft Money Story

Following up on this post, Bob Bauer has written this new post.

"Coercion of voters is alleged"

The Potomac News offers this report, which begins: "State police are investigating possible voter intimidation of some Hispanic residents that occurred outside a polling place in Gainesville."

"A New Channel for Soft Money Starts Flowing"

The NY Times offers this front-page report. I found this snippet going a bit too far in characterizing WRTL as "striking down" the BCRA "ban:" "First, in June, the Supreme Court struck down a ban in the 2002 McCain-Feingold campaign finance laws on political advertisements by corporations, including nonprofit groups, within 30 days of a primary and 60 days of a general election. In its decision, Federal Election Commission v. Wisconsin Right to Life Inc., the Supreme Court ruled that the right to free speech protected any such advertisements except those that could only be interpreted as appeals to vote for or against certain candidates." My own view of the effect of WRTL on campaigns is here.

See also Democrats Launch Big 527 in Roll Call ($). This is at odds with another statement in the Times article: "Second, the Federal Election Commission has made it increasingly difficult for outside advocacy groups to operate as many did in 2004, acting as so-called 527 groups, named for a section of the tax code that allows them to try to influence elections as long as they disclose their donors and expenses."

Bob Bauer also comments (addressing my recent Findlaw column on the Colbert candidacy as well).

"Dem cash swing dwarfed by '95 GOP windfall"

The Politico offers this report.

"MORE THOUGHTS: How 'Fundamental' is the Fundamental Right to Vote? Why the Second Circuit Erred in Conducting Its Burden Analysis"

Scott Street offers these additional thoughts at SCOTUSWiki on the Lopez Torres case. I would not be surprised to see Lopez Torres and the Washington Primary case among the first cases released by the Court this term.

"Diverse Nonprofit Groups Condemn Ensign Amendment Obstructing Passage of Senate Electronic Disclosure Bill"

The Campaign Finance Institute has issued this press release.

"Kohl's milk moola puzzles bureaucrats"

I'm starting to think I need to start a "News of the Weird" section. Last week it was cookies. This week it's milk.

"How a Business Flop Became a Political Force"

The Wall Street Journal offers this report.

"Ellison wants us all to show up and vote"

The Minneapolis Star Tribune offers this report.

Ironies Abound as 501(c)(4) Runs Ads to Benefit Sen. McCain

Don't miss this AP report.

Election Law Supreme Court Petition to Watch---Davis v. FEC

I have just had a chance to review the jurisdictional statement in Jack Davis v. FEC. According to the Supreme Court Docket for No. 07-320, the government's response is due on November 13.

Davis raises a very interesting issue under BCRA (the McCain-Feingold law) that was not addressed on the merits in the McConnell v. FEC case, the constitutionality of the "Millionaire's Amendment" in BCRA. Roughly speaking, this provision requires self funded candidates for the Senate or House to report their expenditures. When the expenditures exceed a certain amount, the opponent(s) of the self-financed candidate can accept contributions from individuals in an amount triple the individual contribution limit (now at $2,300 per person), even from people who have maxed out their federal contributions for the year. The opponent can also get more coordinated spending with his or her political party.

Davis essentially argues that the Millionaire's Amendment is unconstitutional because it creates an additional burden on him (a series of disclosures of spending in a short time frame) and is not justified by any accepted government interest. The measure cannot be justified as an anticorruption measure, Davis argues, because his (constitutionally protected) spending allows his opponents to raise larger campaign contributions from individuals, increasing, rather than decreasing the chances for corruption. And he argues that the law cannot be justified on equality/level the playing field grounds, because the Supreme Court in Buckley v. Valeo rejected equality as an acceptable rationale for campaign finance regulation. Davis also suggests the measure was not in fact passed by Congress to "level the playing field;" instead it was an incumbency protection measure to insulate incumbents from having to run against well-financed challengers.

Under BCRA, Davis's challenge was heard originally by a three judge district court, with direct appeal (not cert.) to the Supreme Court. The district court opinion (contained in an appendix to the jurisdictional statement) did not address the Buckley point, but found that Davis was not unconstitutionally burdened. The Millionaire's Amendment does not limit what he could spend; it only gives his opponents a fundraising benefit. Lower courts have approved public financing measures which give extra money to opponents of self-financed candidates on similar grounds. The three-judge district court here relled on those cases, which Bob Bauer criticized at the time of the opinion's issuance. The court also found that the disclosure requirement were not burdensome.

If this case were coming up on cert., I don't think I'd expect the Supreme Court to take the case. After all, it has had its fill of Supreme Court cases in recent years and this issue is not the most pressing one right now. (Indeed, during McConnell, my main worry about the Millionaire's Amendment was that a majority of the court would use it for an argument that the federal contribution limit was not necessary to prevent corruption---after all, it can be tripled just by the spending of a wealthy candidate. This case presents the question less directly.) But because this is up on appeal, the Court cannot just decline to hear it. Even a summary affirmance, by which the Court agrees with the lower court result, serves as valid precedent that the lower court got the result right (though not necessarily the reasoning). I think some Justices could be bothered by the fact that the lower court relied upon an equality argument to sustain this law, and may view it as another incumbency protecting aspect of BCRA. On the other hand, it is hard to see much harm that Davis suffers by this measure.

If the Court notes probable jurisdiction and sets this case for argument, it could be heard this term (there are still a number of slots to fill in the spring) with a decision expected by late June.

"The Supreme Court, Face to Face with the Politics of Voter ID"

Bob Bauer has written this new post. (Disclosure: I've filed a brief supporting petitioners in this case.)

"Stephen Colbert's 'Hail to the Cheese'" Presidential Candidacy: Why the Comedian's Campaign Raises Serious Questions about the Role of Corporate Money In Elections"

I've written this column for Findlaw. It begins: "I'm as amused as the next guy by Stephen Colbert's 'Hail to the Cheese' candidacy for President of the U.S., which appeared to have been 'sponsored' by Doritos and which was promoted on his Comedy Central cable show, 'The Colbert Report.' Colbert's routine is certainly funny, but it also raises some serious questions about the appropriate role of corporate money in the election process."

"Justice Department returns to enforcing voter laws"

McClatchy offers this report.

"GOP Punishes Five Early Voting States"

The Washington Post offers this report.

Nader Fights His Pennsylvania Ballot Access Lawyers over Garnishing Nader's Bank Account

Richard Winger has the details. CORRECTION:Nader is being sued by his opponents' lawyers, not his own. I regret the error.

House Committee Administration Has Friday Hearing on Election Day Registration and Provisional Voting

See here (scroll down to Nov. 9). Streaming video should be available.

My Amicus Brief in the Crawford Voter ID Case Now Available

Along with my co-counsel, Alan Glickman and Kristie Blase of Schulte Roth & Zabel, I've written this amicus brief (pro bono, on my own behalf) in Crawford v. Marion County Election Board, the Indiana Voter ID case. I've posted the top side briefs on the merits here and you can find even more documents on this Brennan Center page.

To read the Introduction to my brief, click on the link below.

INTRODUCTION AND SUMMARY OF ARGUMENT

The 2000 Florida election controversy has had profound effects across the United States both in greatly increasing the amount of election law litigation and in undermining the confidence of some groups of voters in the fairness of the electoral process. Although this Court expressed the hope in Bush v. Gore that "[a]fter the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting[,]" 531 U.S. 98, 104 (2000), many recent efforts at election administration reform have become mired in partisan controversy. Generally speaking, Republican state legislators have proposed laws, such as strict voter identification laws, that they say will prevent voter fraud, and Democratic legislators have proposed laws they say will prevent voter intimidation and remove barriers to voting, such as Election Day registration.

The greatest controversy has occurred in the realm of voter identification laws. Every state legislature that has passed a voter identification law since 2000 has done so along party lines. Some Democrats believe Republicans have enacted such laws not to prevent fraud but to make it harder for poor and minority voters, who are more likely to vote for Democratic candidates, to vote. Some Republicans believe Democrats oppose such laws because they want to make it easier for ineligible voters supporting the Democratic Party to vote, or for eligible voters to vote more than once. Even courts that have considered recent constitutional challenges to voter identification laws have split along party lines, with Republican-elected (or -nominated) judges tending to uphold voter identification laws against constitutional challenge and Democratic-elected (or -nominated) judges voting to strike down such laws. This does not mean, and amicus does not suggest, that judges are attempting to benefit their political parties. Rather, judges simply appear to bring to these cases the same perspectives that others with their political affiliations have about the credibility of voter fraud and vote suppression claims. Nonetheless, decisions rendered along party lines can engender a public perception of partisanship.

In this atmosphere, it is important for this Court to articulate clear and fair rules to resolve election administration disputes that transcend partisan politics and restore voters' faith in the integrity of the electoral process. Most lower courts considering such disputes turn to this Court’s opinion in Burdick v. Takushi, 504 U.S 428 (1992), or other cases in this line, which articulate a flexible balancing approach to judging the constitutionality of state election laws. But the Burdick standard has not been correctly applied by some lower courts to cabin judicial discretion. Those courts have focused on the first part of the test: pegging the level of scrutiny to the character and magnitude of the burden the law places on some voters. It is an uncertain endeavor, see Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 208 (1999) (Thomas, J., concurring) ("I am not at all sure that a coherent distinction between severe and lesser burdens can be culled from" the Burdick line of cases), and one that has led to strongly divergent results in similar cases. Finding a severe burden, some courts strike down voter identification laws. Finding a lesser burden, some apply an exceedingly low level of scrutiny that does not require the state to provide any evidence its law is reasonably calculated to serve its interest, and uphold such laws. That approach misreads Burdick and this Court’s other relevant precedents and ignores a basic principle of those cases that applies even where there are no severe burdens on voters: a state's election law must be at least reasonably tailored to the interests the law purports to further.

In passing judgment [on the constitutionality of challenged election laws], the Court must not only determine the legitimacy and strength of each of [the state’s asserted] interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff ’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (emphasis added). As this Court indicated in Rosario v. Rockefeller, the provision in question should be "tied to [the] particularized legitimate purpose" articulated by the state. 410 U.S. 752, 762 (1973) (emphasis added).

This aspect of the test is crucial and should not be ignored by lower courts, especially given the post-2000 partisan atmosphere in which there is the danger that election administration rules are being chosen for partisan advantage. See Clingman v. Beaver, 544 U.S. 581, 603 (2005) (O’Connor, J., joined by Breyer, J., concurring); Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring in the judgment).

The misapplication of Burdick and related authorities can lead to arbitrary results in similar cases, and arbitrariness can look like political favoritism to voters already concerned about the fairness of the electoral process. This Court should hold that lower courts, in "consider[ing] the extent to which [state] interests make it necessary to burden the plaintiff'’s rights," Anderson, 460 U.S. at 789, must require states not only to articulate an important state interest--such as preventing election fraud--to justify its challenged election law, but also to provide some credible support for the proposition that its law will further that important interest. Only if the state demonstrates a reasonable fit between its law and the state interests that are implicated is it appropriate to balance those interests with the potential disenfranchisement of voters or other voter burdens.

Enforcing this Court's requirement that the state show that its law is at least reasonably tailored to further important state interests and nondiscriminatory will invalidate the most partisan of election administration laws that are passed with only the pretext of being motivated to serve an important state interest. The reasonable tailoring requirement is not as strict as the "narrow tailoring" of strict scrutiny and will not undermine the results in this Court's Burdick cases--such as those in involving ballot access or the question of who gets to vote in a party primary--which have recognized that "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes." Storer v. Brown, 415 U.S. 724, 729 (1974); see also id. at 730 ("It is very unlikely that all or even a large portion of the state election laws would fail to pass muster under [this Court's] cases").

Under the appropriate application of the Burdick standard, the lower court decision cannot stand. Though preventing election fraud is indeed a compelling interest that justifies any number of state election laws, it cannot justify Indiana's strict photographic identification requirements.

First, the law does impose a severe burden on some voters. Even assuming election fraud prevention justifies a fairly applied voter identification requirement, it cannot justify Indiana's requirement, the strictest approach in the nation, which would require an indigent voter lacking identification to make two trips to government offices (some as far as 30 minutes or more away from the voter’s residence) within 10 days at the voter’s own expense to cast a ballot that would count.

Second, there was no credible evidence in or outside of the record that impersonation voter fraud is a serious problem today in this country. Indiana itself conceded it had never prosecuted a case of impersonation voter fraud that a voter identification law would be likely to prevent. If the state were really concerned about voter fraud, it would have taken steps to make absentee voter fraud more difficult, given the documented history of that type of voter fraud.

Because Indiana failed to present any evidence that the provision at issue is reasonably tied to the purpose of addressing election fraud, the law should be struck down as a violation of the Equal Protection Clause and the First Amendment right of association whether or not the court concludes the burden the law imposes on voters is "severe."

Finally, this Court should clarify the confusion with Burdick balancing that has emerged from dicta in this Court's recent opinion in Purcell v. Gonzalez, 127 S. Ct. 5 (2006) (per curiam). The lower court read Purcell as requiring a court to balance the actual disenfranchisement costs of voter identification laws with feelings of disenfranchisement that could come from voter perception of voter fraud. This Court should clarify that lower courts should engage in such balancing only if the state can come forward with evidence that voter turnout is in fact being depressed by real or imagined voter fraud.

"Civil Rights Groups Seek to Stop Florida Voter Purge Law"

TPMmuckraker has this post, which begins: "Hans von Spakovsky, whose nomination for the Federal Election Commission is currently stalled in the Senate, may have left the Justice Department in 2005, but his influence remains. A prime example is in Florida, where the state legislature, evidently following von Spakovsky's advice, passed a law that could disenfranchise tens of thousands of legitimate voters. Now civil rights groups are trying to stop the law before it affects the 2008 elections."

Just After Election Day (2005!), New Jersey Supreme Court Issues Divided Opinion on Election Challenge

See here.

"PAC Fundraising Swings Democratic Over the First Nine Months Of 2007"

The Campaign Finance Institute has released this report.

Sequoia Sold to Create "100% American-Owned and Independent Company"

See this press release.

WDAM-TV Editorial: Voter ID

A snippet of this editorial reads: "When you have election results being nullified in Jeff Davis County because of dead or hospitalized people supposedly showing up at the polls, signing the register and being able to vote--as well as other similar allegations of irregularities elsewhere--I would say that it is about time this issue was forcefully addressed."

"Judge blocks Michigan's Jan. 15 primary"

The Detroit News offers this report.

"Fla. asked to detail balloting procedures"

This report begins: "Florida's voting and elections procedures are under new scrutiny even as the state prepares to host another presidential contest. The U.S. Justice Department has asked state election officials to provide detailed information about efforts to curb fraudulent voting, from policing voter registration drives to requiring photo IDs at the polls."

I have posted the letter from DOJ, signed by John Tanner, here.

See also this post at Project Vote.

"Photo ID requirement prompts few complaints; But NAACP, which opposed new law, says some voters were upset, confused by the change."

The Detroit News offers this report.

"Liberals eye new cash machine"

The Politico offers this report, which begins: "The liberal Internet money machine known as ActBlue has proposed a new fundraising twist designed to provide huge cash infusions to Democratic-leaning political action committees and boost Democratic candidates. ActBlue, already among the top PACs in politics today, has asked the Federal Election Commission for permission to solicit money for groups such as the AFL-CIO and Human Rights Campaign, which are barred from trolling for cash outside of their direct membership. If the FEC approves, ActBlue could help dramatically grow the size of the special-interest PACs, which are a major source of money for congressional candidates in particular."

The Center for Competitive Politics likes the idea. Bob Bauer comments.

NAACP Complains About Election Day Voter ID Problems

See here.

"Electoral vote measure has a $538,000 kitty"

The Sacramento Bee offers this report. See also this LA Times report.

"Doritos Still the Word for Colbert"

The Hollywood Reporter offers this interesting report.

"Ugly Infighting Yields a Breakneck Primary Schedule"

US News offers this report.

"Feds question fairness of state's new voting law; The U.S. Department of Justice has raised questions about whether new Florida voting laws could disenfranchise minority voters"

The Miami Herald offers this report.

Just in Time for the Release of the Revised Edition of John Fund's Stealing Elections...

Justin Levitt of the Brennan Center has written a monograph, the Truth About Voter Fraud. It debunks most of the claims of polling place voter impersonation fraud, voting by dogs, dead people, etc. It is must reading for those interested in election administration questions in the U.S.

How Much Does It Cost to Buy a Vote?

Maybe a box of cookies is enough.

"Not Islands: Tax-Exempt Organizations and the Effects of 527 Regulation"

Bob Bauer has written this post, linking to this article by Ezra Reese.

Newest Version of Steven Sholk's Guide to Election Activities of 501(c)(3)s

It is now available here.

"Obama, Edwards pay little for shunning PACs"

The Politico offers this report.

"Campaign Finance Red Tape: 'Worse than the IRS!' According to New Study"

The Institute for Justice has issued this press release about this report by Jeff Milyo. From the executive summary: "This report examines the effects of the bureaucratic red tape created by disclosure regulations on ordinary citizens through a large-scale experiment with 255 participants. They were asked to complete the actual disclosure forms for California, Colorado or Missouri based on a simple scenario typical of grassroots political activity--one modeled after a real group sued for violating campaign finance disclosure laws."

Interesting Candidate Speech Issue Before Maine Supreme Court

See here.

"Deep Pockets, Shallow Thinking"

The North County Times (CA) offers this editorial, which begins: "If there's anything more potentially dangerous than a man with limitless ambition, it's a man with limitless ambition and a bottomless bank account. Enter Darrell Issa. The congressman from Vista recently breathed new life into a floundering movement to change the way California divvies up its Electoral College votes."

"Primary Pain; Why Any Effort to Reform the Primary Process is Doomed"

The New Republic offers this report.

Sec. Rokita Press Release on Election Day Monitoring

See here.

"Registration not needed, group says"

The Milwaukee Journal Sentinel offers this report, which begins: "A national organization advocating lower taxes and less government spending did not register to campaign in Tuesday's school building referendum election because it is not urging a 'yes' or 'no' vote, a group representative said."

"Department of Justice investigates attorney in Boston voting lawsuit"

The Boston Globe offers this report. See also this NYT editorial on John Tanner.

"Electoral College initiative off the street"

Is the California electoral college measure too popular or perhaps not popular enough?

"CGS Maps Growth of State and Local Public Campaign Financing"

The Center for Governmental Studies has released this eBulletin.

"Federal judge dismisses Crow voter fraud suit"

AP offers this report.

"Justice Fight Lingers at FEC"

Jeanne Cummings has written this report at the Politico on the von Spakovsky controversy.

Top Side Merits Briefs in Crawford, the Indiana Voter ID Case

You can find the brief of the Indiana Democratic Party here.

I will post the ACLU brief when I receive permission to post it. UPDATE: It is here.

Under new Supreme Court rules, amicus briefs are due 7 days after the merits brief for the side one is supporting (or after the petitioner's brief if neither side is supported). I'll be linking to amicus briefs in coming days, including one I'm working on right now.

"Political watchdog nipping at heels of state campaign finance"

Here is George Skelton's latest LA Times column.

"John Fund Unbound, on Voter ID"

Bob Bauer has this post on his More Soft Money Hard Law blog.

"Political Judges and Popular Justice: A Conservative Victory or a Conservative Dilemma?"

George Brown has posted this draft (forthcoming, William and Mary Law Review) on SSRN. Here is the abstract:

Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal courts. This article presents an argument against this transformation of the American judiciary. It is aimed at conservatives, for they are the driving force in the movement to make campaigns for judicial offices exactly like campaigns for other “political” offices. I seek to establish, as a matter of policy, that conservative principles argue for a presumption against politicization. I review the judicial “parity” debate, and conclude that conservatives have a tremendous stake in the health and viability of state courts - and in perceptions of the quality of those courts. Broader issues of federalism are at stake as well - particularly the “laboratory” value of state experimentation in seeking the optimal balance between accountability and rule of law values. With this policy perspective in place, the article then examines the Supreme Court decision in Republican Party of Minnesota v. White, the major victory for the pro-politicization position. I argue that White rests on flawed premises and should be narrowly construed.

"Enfranchising Overseas Voters"

Here is Eliza Newlin Carney's latest "Rules of the Game" column for National Journal.

"Anti-Photo ID Legislation Would Promote Election Fraud, Says Group"

The National Center for Public Policy Research (a group I have never heard of before) has issued this press release.

"East St. Louis Rehires Workers Convicted of Vote Fraud"

AP offers this report.

"Cuyahoga County 0-for-2 in recounts"

The Cleveland Plain Dealer offers this report.

Correction on Keyssar

Last week I linked to a Los Angeles Times oped by Alex Keyssar. The Times has now posted the following correction: "FOR THE RECORD: Presidential politics: The headline on an article by Alexander Keyssar in the Oct. 28 Opinion section suggested that the author supports divvying up electoral votes by congressional districts. He supports the idea of a national popular election that would eliminate the electoral college altogether."

Eleven of 16 Major Party Candidates for President Respond to "Why Tuesday?" Election Reform Challenge

See here.

"New Life for Initiative to Apportion Electoral Vote"

The NY Times offers this report.

"Abusing Direct Democracy: Bad Actors in the Signature Gathering Process"

The Ballot Initiative Strategy Center has issued this report on the ballot collecting company now working for the California electoral college initiative.

"'This Will Make Voter Fraud Easier'"

John Fund has written this WSJ column, which also says that Fund's "Stealing Elections" book will be due out in a revised edition soon.

Questions Over IDs Needed for Voting in Two States

See here (Indiana) and here (Georgia) (second link via Ed Still).

"The Colbert Experience, At Law"

Bob Bauer offers these reflections.

"Refining the Bush v. Gore Taxonomy"

Ned Foley has this "Free and Fair" blog commentary.

"Legal challenge on electoral change; Democrats say initiative violates U.S. Constitution and vow a suit to fight it."

The Sacramento Bee offers this report on the California electoral college initiative. I'm quoted as follows in the article: "It is an exceedingly difficult constitutional question,...There are arguments on both sides, and it's not clear how the courts will resolve it. ... The bottom line is, this is not an easy question. For Democrats to say, of course this isn't constitutional, and for Republicans to say, of course this is constitutional, is just spin."

"Alabama legislator named as suspect in voter fraud probe"

AP offers this report about alleged absentee ballot voter fraud.

"State asks court to halt TV ad for judge candidate"

AP offers this report, which begins: "Pennsylvania's top elections official said Thursday he will go to court to block an out-of-state nonprofit group from airing a television ad promoting Republican Superior Court candidate Maureen Lally-Green." Has anyone else ever heard of removing an advertising because it was paid for with (for-profit) corporate money? I can only think of instances of after-the-fact fines. This of course raises First Amendment prior restraint issues.

"EAC Issues Six Quick Start Management Guides for Election Officials"

See this press release.

Colin Hughes Writes Exensive Paper on Redistributions (Redistricting) in Australia

See here, a paper for the Democratic Audit of Australia.

Stanford Law Review Posts Final Version of My Article, "The Untimely Death of Bush v. Gore"

Via this link to Vol. 60, Issue 1 of the Stanford Law Review, you can find this pdf of the final version of my article, "The Untimely Death of Bush v. Gore," 60 Stanford Law Review 1 (2007). Part III of the article discusses voter identification issues, including the Crawford case from Indiana, which the Supreme Court has agreed to hear later this term.

Here is the abstract for the Article:

The moment for election reform inspired by the Supreme Court's decision in Bush v. Gore has come and gone. While some thought that election reformers could make lemonade from lemons from Bush v. Gore's equal protection holding, that possibility has not come to pass. Political actors have failed to respond well to the crisis in our election administration made obvious by the 2000 Florida voting fiasco.

Part I of this Essay, looking at punch card litigation in the Sixth and Ninth Circuits, explains that though some lower court judges still may look to the Bush v. Gore precedent as a means to force states to undertake election reform, that effort has been stymied thus far through the en banc process in the federal appellate courts.

Part II considers state and federal legislative and administrative responses to Bush v. Gore. Although vote counting technology has improved, states have made little progress otherwise in fixing their election administration problems. In fact, election administration reform has taken on an increasingly partisan direction. The debate over good election practices is taking place in the absence of good evidence, raising the possibility that some laws, most prominently new laws requiring voters to show identification at the polls, are being enacted for partisan advantage rather than to remedy any real problem.

Part III returns to the failure of the courts in the wake of Bush v. Gore. It begins by noting that the rise in election litigation that this country witnessed after Bush v. Gore continues unabated. It then uses the Supreme Court's recent opinion in Purcell v. Gonzales to show that the Court has failed to learn the lessons of Bush v. Gore. The Court's decision to issue a quick opinion, its casual empiricism, and its discouraging of pre-election litigation demonstrate that all members of the Court - both liberal and conservative Justices - are insufficiently sensitive to the kind of trouble their election administration opinions may cause. Part III concludes with an examination of Judge Posner's troubling Seventh Circuit opinion in Crawford v. Marion County Election Board upholding Indiana's voter identification law against a dissent by Judge Evans.

"Ellison wants to ban photo ID as requirement for voting"

AP offers this report, which begins: "Requiring photo IDs to vote in federal elections would be banned under legislation introduced Wednesday by Rep. Keith Ellison, who said such requirements disenfranchise minorities, the poor, women, elderly and young people."

If the California Electoral College Measure Appears on the Ballot, It Might Be at the November, Not June, Ballot

Talk about burying the lede.

"Missing Canons of Construction in Ali v. Federal Bureau of Prisons?"

Anita Krishnakumar has written this interesting post at Concurring Opinions. It begins: "This past Monday, October 29, the Supreme Court heard oral arguments in a little-noticed case that raises fascinating questions of statutory interpretation: Ali v. Federal Bureau of Prisons."

"Mitchell Wade and MZM Inc. Agree to Pay $1,000,000 Civil Penalty for Illegal Contribution Reimbursement Scheme"

The FEC has issued this press release. The Miami Herald offers Katherine Harris' contributor fined $1 million.

"Is there truthiness to his '08 bid?"

The Los Angeles Times offers this report on the Stephen Colbert candidacy. Colbert announced on his show that he was filing in South Carolina as a Democrat, not a Republican because he wanted to keep under the $5,000 in total spending to avoid election "law" requirements. Here is a link to an earlier show where Massie Ritsch of the Center for Responsive Politics discusses federal campaign finance law with Colbert.

Colbert has also set up this barebones website for collecting petition signatures for his site. In checking who owns the domain name, it appears that whoever is paying for this is using a service that promises not to disclose the identity of the owner of the domain absent a court order.

I'll have more to say about Colbert soon.
UPDATE: The Politico reports that South Carolina Democrats will not put Colbert's name on the ballot.

Commissioner Von Spakovksy's Statement of Reasons Now Available in Vitter Matter

Following up on this post, you can find the statement of reasons here. It appears the linked story got some of the facts wrong about Commissioner von Spakovksy's SOR.