Cal Thomas Believes Judges Appointed By Democratic Presidents Would Strike Down Voter ID Laws to Help Democrats Win Election Through Illegally Cast Votes

Wow.

"Partisan Fissures Over Voter ID; Justices to Hear Challenge to Law"

The Washington Post offers this front page report on Crawford, the Indiana voter id case. Disclosure: I filed this amicus brief supporting the petitioners in this case.

"As Primaries Begin, the FEC Will Shut Down"

The Washington Post offers this front-page report.

Light Blogging Through New Years

Part of the time I will be away without reliable Internet access. Regular blogging to resume January 2 (a day before the Iowa caucuses!) Happy holidays!

"Conflict in Cuyahoga"

Dan Tokaji has this interesting (and disturbing) post.

"Voting Rights Activists Win Big Cases in Florida and Arizona"

AlterNet offers this report.

"Lawsuit challenges Minneapolis instant runoff voting system"

AP offers this report.

"Judge: N.Y. must make voting machine plan"

AP offers this report.

"U.S. Asks High Court to Nix 'Speech-or-Debate' Ruling; Justice Dept. Says It Makes Lawmakers Invulnerable"

The Washington Post offers this report.

"Raskin Leads Voting Rights Fight for 17-Year Olds"

David Lublin has this post at Maryland Politics Watch.

"McShurley's Victory Certified, But Fight Not Over"

See here. See also Some Absentee Voters Wonder, 'Why Bother?"

"California's Proposed Presidential Election Reform Act: New Wrinkles Arising From Its Possible Inclusion on the November, Rather than June, 2008 Ballot "

Vik Amar has written this Findlaw column. A draft of my forthcoming piece on the constitutionality of initiated electoral college reform is here.

Indiana Democrats File Reply Brief in Crawford (voter ID case)

You can find the brief here. The remaining brief is the ACLU's reply brief. Oral argument is January 9. UPDATE: Here is the ACLU brief.

"Editorial: Ohio Secretary of State Jennifer Brunner must not change Cuyahoga County's voting system"

This Cleveland Plain Dealer editorial begins: "Ohio Secretary of State Jennifer Brunner is on the brink of owning an election."

More on the FEC/von Spakovksy FEC Shutdown

Sen. Reid (via TPMmuckraker)

BNA ($)

Bob Bauer here and here

Gerry Hebert

Common Cause

"An opportunity to dump the electoral college"

Frank Askin has this post at NJ.com.

"Fundraising Central: Majority of Presidential Bundlers and Other Fundraisers Hail from Only Five U.S. Industries: Lawyers and Law Firms, Three Finance Industries, and Real Estate"

See this release from the Campaign Finance Institute.

"Tougher voter ID laws fuel debate"

USA Today offers this report.

"Thompson defends campaign donation limit"

The Boston Globe offers this report.

"RECOUNT UPDATE: Commission determines McShurley wins by 13"

The latest from Muncie, Indiana. See also here on the voter fraud allegations.

"Colorado rejects vote scanner that Ohio official wants"

The Cleveland Plain Dealer offers this report. See also this statement from the CSU Center for Election Integrity and this post by Dan Tokaji.

Two from McClatchy

The newspaper bureau offers Inside a GOP effort to rig the 2002 New Hampshire elections and Official: Justice Dept. Slowed Probe into Phone Jamming.

"San Diego sues Bowen over voting machine restrictions"

The Sacramento Bee offers this news update.

"The Politics and Law of Voter ID: Previewing the Supreme Court Arguments in Crawford v. Marion County Election Board"

The AEI-Brookings Election Reform Project will have this interesting event on January 7, two days before oral argument in Crawford.

61% of Respondents Oppose Photo ID for Voting in Parade Magazine Survey

I have no idea if this poll has any scientific basis. Most of the polls I have seen have shown a majority supporting such requirements.

Senate Fails to Reach Acommodation on FEC/Von Spakovsky Controversy; Game of Chicken will Hurt the Country

This Roll Call breaking news report explains the breakdown: "Reid attempted to cut a deal with McConnell, dicing up the block of nominations and holding a separate vote on each nominee. But by mid-evening Wednesday, both sides remained at an impasse: Reid wanted a 51-vote majority to confirm each of the four nominees; McConnell demanded a 51-vote majority to OK von Spakovsky's nomination, but a 60 vote margin for the remaining three." Neither side is budging, at least not publicly. More here See this latest oped by Gerry Hebert and Joe Rich. (See also this letter to the editor.)

Regardless of how one feels about the von Spakovsky nomination, the very real prospect of an FEC lacking a quorum of members as the presidential race really heats up is troubling indeed.

Lott Resigns from Senate; Expect Fight over Date of Election

See here and here.

The latest on the Muncie, Indiana Recount

Today Republican Party is expected to disclose what evidence it has to prove its allegations that the Democrats committed voter fraud in the Nov. 6 election.

"Jeff Davis a reminder of need for voter ID"

Does anyone know if the episodes described in this editorial are verified cases of impersonation voter fraud? Or were these fraudulent votes cast by absentee ballot?

"Look to Minnesota for Vote-Counting Solution"

Ned Foley has written this Columbus Disptach oped.

"Interest Groups Gain in Election Cash Quest"

The Wall Street Journal offers this front page report. Bob Bauer comments.

"Judge throws out Florida voting law"

The Miami Herald offers this breaking news report, which begins: "A federal judge ordered state election officials to stop enforcing a 2-year-old voter registration law, ruling Tuesday that there is already proof that the change put in place by the GOP-controlled Florida Legislature has resulted in 'actual harm to real individuals.'" The newspaper has posted the judge's order here.

"Candidates got around with a little help from their friends"

The Boston Globe offers this report.

"Gift-for-voting offer assailed"

The Sacramento Bee offers this report. The article is correct that payments for voter turnout (but not to vote for or against a particular candidate or measure) are in fact legal in California elections, so long as there is no federal candidate on the ballot. I explore the various laws in Vote Buying, 88 California Law Review 1323 (1988).

"Clean Election Process Would Be a Welcome Break From the Past"

Donna Brazile offers this Roll Call column ($), which begins: "Ben Ginsberg and I don't agree on much of anything. For starters, he is a Republican legal expert on election laws and I am a Democratic activist for the vigorous protection and enforcement of voting rights and civil rights laws. But at a recent Pew/Electionline 2008 Journalists' Forum, we found common ground by agreeing that voters should decide elections -- not political parties."

Congress May Fund HAVA Grants to Study Election Administration

See beginning page 57 here.

Does the State or the Political Party Get to Decide if 17-year-olds can vote?

See this very interesting Washington Post report.

The Brennan Center is Not Happy with Sec. Brunner's Recommendations on DRE Voting

See this statement by Lawrence Norden. See also this report on Cuyohoga County's response to the Brunner study.

Bush Administration Makes Bigger Push on Voter ID

I've already blogged about the DOJ's decision to support Indiana's voter id law, the strictest one in the nation, through filing an amicus brief supporting Indiana. In the mail today I received a copy of a motion the SG has filed in Crawford asking for some of the oral argument time on the side of Indiana. The motion disingenuously argues that petitioners' theory as to why the Indiana law is unconstituitonal "would cast serious doubt on the constitutionality of HAVA as well." Anyone who has read the briefs of the parties and their amici would see that the briefs make it clear that most election laws, including even some voter identification laws, would not be unconstitutional under the tests set forth by the petitioners.

One interesting thing about the DOJ brief is that it methodically avoids discussion of the partisan nature of these voter id laws. As I've chronicled, these laws have been passed only with Republican support in state legislatures and have been opposed throughout the country by Democrats. There has also been a partisan split in terms of how judges decide these cases (also described in my Stanford piece) and this divide has now extended to the amicus briefs in the case itself: Democratic secretaries of state and Senators/members of Congress have filed briefs opposing the law, and Republican attorneys general and Senators/members of Congress, along with the Republican Bush administration, have filed briefs supporting the law. I do not see how the SG can claim to have an honest discussion in its brief representing the United States without noting this troubling partisan divide. [I make much of this divide in Part I of my amicus brief in the case.]

The DOJ brief is also two-faced in how it considers empirical evidence about the burdens of voter id laws. Paul Gronke has already noted that the DOJ brief fails to fairly represent the findings of the Alvarez, Bailey, Katz paper. But the DOJ brief also criticizes that paper and the Barreto et al. paper on the burden of voter id requirements on grounds that they have not yet been published in a peer review journal. The brief then turns around and relies heavily on Jeff Milyo's paper, which also has not yet been published in a peer reviewed journal.

"Giuliani allies keep pushing controversial state initiative"

The latest on the electoral college measure in California. UPDATE: Ignore this post. For some reason Google brought this up as news, but it is dated October 26. Thanks to Richard Winger for pointing this out.

"Federal Election Commission Left in a Lurch"

NPR offers this report.

"The Rush To Regulate Robocalls"

See Eliza Newlin Carney's latest column.

"Christmas Past, Present and Future at the Federal Election Commission"

"Bah, Humbug" says Bob Bauer. See also this BNA report ($) on the FEC meeting/impasse over nominations. Finally, there is this NY Times oped on the FEC nominations impasse.

"ID restrictions may deter some voters, delay others, officials fear"

See this report from New Mexico.

"FEC sets fundraising cap on ballot measure"

The Sacramento Bee offers this report, which begins: "Two San Joaquin Valley congressmen can raise cash in $20,000 chunks to oppose a California redistricting ballot measure, the Federal Election Commission ruled Friday." See also this brief story about the FEC's Friday meeting from CQ Politics, which reports that Commissioners David M. Mason and Steven T. Walther were elected FEC chairman and vice chairman for 2008." This assumes that Commissioner Walther can remain on the FEC after Congress adjourns later this month, and this is very much an open question right now.

Tokaji on the Ohio Voting Technology Report (Everest)

This thoughtful post by Dan Tokaji is not to be missed. Concludes Dan: "In the end, the success of Ohio's 2008 election is likely to hinge more on procedures and people than on technology. In the few months that remain between now and the election, Ohio and other states would do better to focus on those issues than to attempt a hasty overhaul of its voting technology."

"Empircal Overbreadth"

Geoffrey McGovern and Jonathan Krasno have posted this draft on SSRN. Here is the abstract:

The Supreme Court's inability to define substantial over breadth reveals conceptual flaws in a core component of First Amendment law. We argue for a new approach to over breadth that takes cognizance of the empirical nature of the question. The article advances overbreadth scholarship by articulating a means - both empirically plausible and theoretically valid - for applying the overbreadth doctrine in a more routine, measurable, and administrable fashion. In Part I we derive three doctrinally supported measures of statutory imprecision. We establish that only one closely comports with First Amendment goals, is stable in different test scenarios, and provides a substantive measure of statutory sweep. In Part II we empirically examine measurement's central role in a landmark over breadth case, McConnell v. F.E.C., showcasing the pressing need for a definitive standard for measuring over breadth. Our preferred metric remedies the Court's repeated errors by more clearly providing guidance to lower courts and litigants, while closely tracking the over breadth doctrine's important First Amendment goals.

"Campaign Speech and Contextual Analysis"

Miriam Galston has posted this draft on SSRN (forthcoming, First Amendment Law Review). Here is the abstract:

Recent developments - such as a wave of FEC enforcement actions, the FEC's publication of its case by case approach to determining political committee status, and the Supreme Court's decisio' in FEC v. Wisconsin Right to Life - have made it necessary to reconsider the kinds of campaign finance reforms desirable and constitutionally permissible. This Article examines the proposition that, if section 527 groups and groups exempt under section 501 of the Internal Revenue Code are part of a network of commonly managed organizations, then the FEC should decide whether they need to register as political committees under the Federal Election Campaign Act (FECA) by looking at their relationships with other members of the network in addition to evaluating the character of these groups viewed in isolation.

In 2006 the Campaign Finance Institute issued a report looking twelve nationally important nonprofits that had been active in the 2004 election. It found that in ten of the twelve cases, a section 527 group that had not registered with the FEC had an affiliated group that was expressly involved in promoting the candidacy of one or more individuals who were running for a federal office. Sometimes the affiliated group was a PAC registered with the FEC and sometimes it was a 501(c) organization engaged in political campaign activity. Based largely upon the study's findings, I develop my recommendation for a network approach to determining political committee status.

I then examine two potential First Amendment barriers to implementing the approach I recommend. According to the first, which is based upon a line of cases starting with Regan v. Taxation with Representation of Washington, the government cannot condition tax and other financial benefit for a potential recipient on its surrendering free speech rights that it otherwise would have unless there is an alternate channel available for the recipient to exercise those rights. The second depends upon the reasoning of the Supreme Court in, which limits the ability of the FEC to examine the context surrounding campaign messages in deciding whether electioneering communications have occurred. I argue that both of these constitutional obstacles can be overcome and, thus, that a network approach to political committee status is desirable from a public policy point of view and constitutionally valid.

Posted by Rick Hasen at 04:56 PM

Muncie Indiana Recount May Swing to Republican Candidate Because of Lack of Initialing of Absentee Ballots by Party Officials

See here. Doesn't this show that absentee ballots (being offered by the state as an alternative to polling place voting to indigent and other voters lacking id) is not an adequate substitute for polling place voting? [Disclosure: I filed a brief supporting petitioners in the Crawford case.]

"Voting Rights Chief to Leave Post"

The Washington Post offers this report.

"Iowa's Student Vote"

The NY Times offers this editorial. I'll have more to say about this soon.

"Justice's voting chief is being removed"

McClatchy offers this report.

" Court weighs making Arizona redraw its 30 legislative districts"

See here.

"FEC Rejects ActBlue, Edwards Fundraising Requests"

CQ Politics offers this report. Adam Bonin has more.

" Ohio electronic voting machines vulnerable in 2008"

AP offers this report, which begins: "A Treo and a magnet would be tools enough to tamper with the workings of electronic voting machines used in Ohio as well as across the country, the political swing state's top elections official said Friday. In a $1.9 million review with national implications, both corporate and academic scientists identified a host of ways in which votes cast on touch-screen technology are vulnerable to manipulation. Such machines have been purchased across the U.S. as part of a $3 billion conversion laid out in the federal Help America Vote Act." You can access Secretary Bruner's report here UPDATE: See this NY Times report.

"Voting Chief Tanner Resigns"

TPMmuckraker has the Tanner email.

"Midwest Voter Registration Data-Sharing Project Moves Forward"

This is the very interesting lead story in this week's Electionline.org newsletter.

"Right to Vote Trumps Mistakes"

See this story from Tennessee.

"Michael Moore, The Sequel: Mr. Bopp Back In Court, and In the Theatres"

Bob Bauer's latest post concludes: "No one without money to spare should bet it against Bopp in this case."

Persily Article on Renewed VRA Now Available; Ellen Katz and Rick Pildes Comment

Nate's Yale Law Journal article on the renewed VRA is now available. Ellen Katz has written this commentary and Rick Pildes has written this commentary. These are all absolute must-reads. Rick P.'s piece really captures the exasperation I felt at the time of VRA renewal. (For a trip down memory lane, here is a link all the posts in the VRA renewal guest blogging series I had on this blog a few years back.)

"Republicans Urge Supreme Court to Allow Preemptive Strikes in Elections"

Steven Rosenfeld has written this for AlterNet.

"Judicial Campaign Contribution Quid Fails to Produce Quo"

James Sample has written this post for the Huffington Post.

BNA on the FEC's WRTL E&J

See here ($), echoing some of the recent comments I've made on this blog.

Republicans Apparently Have Dropped Voter Fraud Allegations in Muncie, Indiana Recount

See here. See also here, which begins: "Ninety percent of the voter fraud cases that came out of East Chicago in 2003 have been successfully prosecuted, Indiana Attorney General Steve Carter said Wednesday." I get the sense that there is a full court press among Republicans to raise voter fraud issues in Indiana while the Supreme Court considers the Crawford case. [Disclosure: I filed an amicus brief supporting petitioners in this case.] The Boston Globe editorializes on "Voter Fraud Fraud."

"Voter ID in HAVA and The Case for Preemption"

Bob Bauer's latest.

"More Planning Needed to Prepare for '08 Election"

Steve Huefner, Dan Tokaji, and Ned Foley have written this Roll Call oped ($).

Jim Bopp's Next Step: Challenging McCain-Feingold's Disclosure Provisions for Issue Ads

Via email comes news of a press conference about a new lawsuit:

On Thursday, December 13 at 11:00 a.m. EST, Citizens United will file a challenge to the 2002 Bipartisan Campaign Reform Act. Citizens United has retained James Bopp Jr., the Indiana attorney who successfully argued the Federal Election Commission vs. Wisconsin Right to Life, challenging the constitutionality of a campaign finance law that limits certain broadcast ads, including grassroots lobbying, during federal campaigns

As it prepares to release its hard-hitting political documentary, Hillary: The Movie, Citizens United is challenging the current FEC laws that requires issue ads to include a disclaimer and groups running issue ads to file a report on their contributors, arguing the ads for the film are commercial ads, not political ads that can be regulated by federal campaign finance laws. A ruling in favor of Citizens United could deal a blow to the McCain-Feingold law, which Congress passed in 2002 to regulate the participation of advocacy groups and political parties in our political process.

"No Matching Funds to Block"

See this interesting post about the presidential public financing system at the CLC blog.

"BMV pursuing thousands of ID discrepancies"

Is this going to cost many Indiana residents their right to cast a ballot that will count?

"An odd civics lesson for 7 L.A. schools"

The LA Times offers this report on an interesting election procedure used yesterday in 7 Los Angeles schools. I'd be interested in hearing from others whether this kind of election is entitled to a Salyer Land type "special purpose district" exemption from the one person, one vote rule.

"The Ghost Of Gonzales: Justice Dept Still Backs Controversial Voter ID Law"

Will Thomas has this post at the Huffington Post. Orin Kerr views the DOJ's filing more favorably.

"Yepsen: Parties, candidates must make sure caucuses are clean"

David Yepsen has this column in the Des Moines Register.

"State: Voter fraud must be fought"

This story from Talahassee.com begins: "The need to fight voter fraud -- even when not required by federal law -- is now the state's top reason in fighting civil-rights advocates over a voter-registration process that has left more than 14,000 Floridians unable to vote."

Paul Gronke on DOJ Amicus Brief in Crawford

See here.

Bob Bauer on the FEC's New WRTL E&J

See here.

"Will the Supreme Court Decide the 2008 Election?"

The NY Times Editorial Board blog has this new post.

One More Amicus Brief in Crawford

Following up on this post the Lawyers Democracy Fund has filed this amicus brief in the Indiana voter id case. It does not yet appear on the Brennan Center's otherwise comprehensive Crawford page.

"DoJ Argues for Voter ID Law in Supreme Court Case"

TPMmuckraker offers this report.

FEC Releases Draft Explanation and Justification for Post-WRTL Rule

This document is going to keep the campaign finance bar busy for a while. Pay close attention to the discussion of the Bill Yellowtail issue at pages 41-42 (pdf 42-43.) This conclusion is key: "although a past vote 'against child support enforcement' is mentioned, the ad does not focus on any public policy issue." I think that is a very questionable conclusion, one that is at odds with what seven members of the Supreme Court said about the Yellowtail ad. If this stands, don't be surprised to see someone either challenge this in court, or run a Bill Yellowtail type ad, get challenged by the FEC, and move to court to argue that this aspect of the "totality of the circumstances" test that the FEC will engage in is inconsistent with WRTL. (I discuss the issues surrounding Yellowtail-type ads here.)

"EAC Releases 2006 Election Day Survey Results"

See this press release about this report issued by the EAC. Among the conclusions of the report:

- Nearly 173 million persons were registered to vote for the 2006 elections--an increase of nearly 12.1 million since the 2002 midterm election.
-- The number of registered voters declined since the 2004 Presidential election from nearly 176.2 million to 172.8 million.
--76.6 percent of the Voting Age Population (VAP) was registered and 83.8 percent of the Citizen Voting Age Population (CVAP) was registered.
--More than 82 million ballots were cast or counted in the 2006 election.
--One percent of those participating cast a provisional ballot. (slightly more than 794,000 individuals)

Thor Hearne Files Brief in Crawford Voter ID Case, Not for ACVR, But for 41 Republican Senators/Members of Congress

You can find the brief here. This time the "evidence" of voter fraud comes from statements of members of Congress (see brief at 15-17), most of them related to unproven anecdotes of voter fraud as well as types of voter fraud (such as mail in balloting voter fraud allegedly done in the names of dogs) that an in person voter id law would do nothing to prevent.

[Disclosure: I filed an amicus brief supporting petitioners in this case.]

"High court backs public financing"

This story from the Wisconsin State Journal begins: "All seven members of the state Supreme Court have endorsed public financing of elections for that court, saying it is needed to 'protect' the judiciary. The endorsement came on the eve of a special legislative session on campaign finance reform."

"Vallejo mayor to request hold on race he lost by 2 votes in recount"

The SF Chronicle offers this report, which begins: "Vallejo Mayor Gary Cloutier said Monday he will ask a judge today to place on hold the results of the Nov. 7 election, saying vote-counting irregularities cast 'a cloud of suspicion and doubt' over the recount that put his chief opponent Osby Davis on top by two votes."

"Independent groups poised to play big role in election"

The Boston Globe offers this report. In somewhat related news, the Denver Post offers Political Funds Skirt Rules.

"The U.S. Government on Voter Photo ID: The Argument from 'Corruption'"

Bob Bauer has written this post .

"FEC draft: Edwards contributions not matchable"

Ben Smith has this blog post at The Politico.

"The Genetic Basis of Political Participation"

This draft by Fowler, Baker and Dawes looks interesting. Here is the abstract:

The decision to vote has puzzled scholars for decades. Theoretical models predict little or no participation in large population elections and empirical models have typically explained only a relatively small portion of individual-level variance in turnout behavior. However, these models have not considered the influence of genetic variation on voting. Matching public voter turnout records in Los Angeles to a twin registry, we study the heritability of political behavior in monozygotic and dizygotic twins. The results show that the decision to vote is significantly
influenced by genetic factors. We also replicate these results with data from the National Longitudinal Study of Adolescent Health and show that they extend to a broad class of acts of political participation. Our findings suggest that humans exhibit genetic variation in their tendency to participate in political activities and, more importantly, that biological evolution may play an important role in the development of mechanisms that help humans overcome social dilemmas.

"ILLEGAL ALIEN ISSUE ADDED TO SUPREME COURT VOTER ID CASE"

See this press release.

"At least 57 lacked photo IDs in November elections"

AP offers this report from Georgia. So what is the response of those who claim there are no potential plaintiffs in Georgia (or Indiana) disenfranchised by voter id? That 57 is a small number? It would not surprise me at all of these 57 voters were not randomly distributed in terms of income, race, or education. This number of course does not count voters without id who were deterred from coming to the polls at all. This was also a low turnout event compared to the upcoming presidential primary and election.

"CLC Files Comments in SpeechNow.org Advisory Opinion Proceeding"

See here.

DOJ Files Amicus Brief Supporting State of Indiana in Voter ID Case

This is disappointing, but not entirely unexpected. I think this decision will prove controversial given the position the DOJ has taken in pushing the line in recent years that there is a great deal of voter fraud---and the apparent firing of some U.S. attorneys (in New Mexico and Seattle in particular) on grounds that they did not pursue voter fraud allegations more forcefully.

Via email came this statement from Wendy Weiser of the Brennan Center:

"The Department of Justice is taking an extreme legal position, which, if accepted, would mean that there could be virtually no challenges to laws suppressing the vote before an election. Their position is that you can almost never bring a constitutional challenge to a voting law before it causes harm. This means that any law meant to suppress the vote would have already accomplished its goal of disenfranchising voters before it could be challenged in Court. Their position, taken to its logical extent, would allow jurisdictions to suppress the votes of tens of thousands of voters before a single aggrieved voter could get their day in Court."

"The state of Indiana has the most stringent voter ID law in the country. The facts make clear that Indiana's law -- rather than preventing fraud -- is actually disenfranchising substantial numbers of voters, especially minority and low-income voters, students and seniors. The Bush administration's brief stretches both the law and the facts to create an inaccurate and skewed picture of the effects of Indiana's voter identification law."

"It is disappointing to see our government institutions formed for the purpose of protecting voters coming down on the side of vote suppression."

Attack on Immanuel Kant: Should It Be Subject to the WRTL Exemption for "Issue Ads"?

See here. In my view, because of the line "Wrong on Metaphysics, wrong for America," this ad would not be entitled to WRTL's safe harbor exemption, but could be paid for with corporate or union funds under the FEC's expected "totality of the circumstances" approach. Enjoy.

Bauer on the Ron Paul Blimp

See here. See also this Washington Post report.

"Schwarzenegger Redistricting Plan Could Cost Democrats Six Assembly Seats and Two in the Senate"

See this post at the California Progress Report.

Two on Public Financing

USA today offers an editorial, "Our view on elections: 5 reasons for public financing." Brad Smith has written this reply, "No Welfare for Politicians."

"Why Counting Votes Doesn't Add Up: A Response to Cox and Miles' 'Judging the Voting Rights Act'"

Ellen Katz and Anna Baldwin have posted this draft on SSRN. Here is the abstract:

In Judging the Voting Rights Act, Professors Adam B. Cox and Thomas J. Miles posit that their findings "contrast" and "cast doubt" on the core findings we reported in two related studies. Cox and Miles do not dispute our finding that Section 2 plaintiffs have been more likely to prevail in jurisdictions "covered" by the temporary provisions of the Voting Rights Act than elsewhere. Instead, they observe that the votes judges cast in Section 2 cases in covered jurisdictions were no more likely to favor liability than the votes they cast in non-covered ones. Based on this observation, Cox and Miles conclude that coverage does not matter.

The observation about votes is correct but the conclusion is not. To be sure, the votes Cox and Miles chose to count do not, standing alone, show that covered jurisdictions "still have more voting rights problems" than non-covered ones. But no good reason exists to suspect that they would. Counting votes by individual judges rather than examining final judgments may well illuminate a number of issues, but as a lens through which to compare covered and non-covered jurisdictions, it promises at best a skewed vision of "voting rights problems" in these regions. This brief essay explains why.

Texas, Alabama, Colorado, Florida, Hawaii, Michigan, Nebraska, Puerto Rico, and South Dakota File Brief Supporting Indiana in Voter ID Case

You can find the amicus brief of these states here. Am I correct that all of the state attorneys general (listed on page 2 of the pdf) are Republicans? [Disclosure: I have filed an amicus brief supporting petitioners in this case.]

"Super Donors"

Eliza Newlin Carney has written this cover story (free access) for the new issue of National Journal. A brief description from the website: "A small group of lobbyists routinely hits the limit (now $108,200) on what an individual may donate to candidates -- and political parties and political action committees. Some are driven by their passion for politics. Others see it as a necessary extension of their lobbying work."

"$1,000-giving lid to hopefuls OK, McDaniel states"

The Arkansas Democrat-Gazette offers this report, which begins: "A provision in an ethics bill lowering the individual maximum campaign contribution per election from $ 2, 000 to $ 1, 000 would likely be upheld as constitutional under the U. S. Supreme Court’s existing precedents, Attorney General Dustin McDaniel said Thursday. However, he said, the nation's high court, since the addition of two new members, 'has evidenced a more stringent approach to campaign finance restrictions.'" You can find the AG opinion here. Thanks to a reader for passing these along.

"The Missing Referee; A standoff could cripple the Federal Election Commission."

The Washington Post offers this must-read editorial on the standoff over FEC nominations. A snippet: "During his tenure at the FEC, Mr. von Spakovsky has at times sarcastically referred to campaign finance reform advocates as the 'IPL.' or 'Incumbency Protection League.' He has compared some campaign finance rules to the Alien and Sedition Acts. Over the top, yes, but Mr. von Spakovsky has not demonstrated the utter hostility to campaign finance laws that led us to oppose, unsuccessfully, the confirmation of former FEC member Bradley Smith."

Bob Bauer comments.

Brad Smith and the Ron Paul Blimp

See here.

"Voter ID rules under attack, on defense in Midwest"

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

"Congress Takes New Legislative Interest in Political 'Robo-Calls'"

CQ Politics offers this report.

"New Miss California Named After Error"

Does this count as an "error in the vote tabulation"?

"Electoral vote effort delayed; Initiative backers decide to aim for the November ballot instead of June's."

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

"When 'Legislature' May Mean More than 'Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore"

I have just posted this draft on SSRN (forthcoming, Hastings Constitutional Law Quarterly). Here is the introduction (footnotes omitted):

Imagine the following scenario, which, as of the time of this draft, may not be likely but is not at all far-fetched: Hillary Clinton is locked in a close race with Rudolph Giuliani to become the 44th president of the United States. California Republicans raise funds to qualify a ballot measure to appear on the November 2008 ballot which would change the allocation of California's 55 Electoral College votes used to determine the next president. Rather than using a statewide winner-take-all system which appoints all of the state's 55 electors to the winner of the statewide popular vote, the initiative would change the method to appoint 2 of the electors based on a statewide popular vote, and the remaining electors based on the results of the popular vote for president in each state congressional district. The measure is widely expected to help Republicans capture as many as 20 Electoral College votes and could well make the difference in the election nationally. Democrats file suit a pre-election suit to keep the measure off the ballot arguing, among other things, that the measure violates Article II of the United States Constitution, which they say allows only the state legislature, and not the people legislating through the initiative process, to pick the rules for choosing presidential electors. The California Supreme Court, citing precedent allowing it to decline pre-election review of substantive constitutional claims, denies review. The measure passes at the same time California voters vote for president, and the fate of the presidency stands in the balance: without a portion of California's votes, Clinton loses and Giuliani cannot become president. With 20 of California's electoral votes, Giuliani becomes president.

The California Supreme Court rules on the legality of the initiative and the losing party files a petition for certiorari in the United States Supreme Court, which for the second time in three elections, must decide a case that will determine the outcome of the presidential election. The identity of the 44th president turns on a single legal question: Does the reference to "Legislature" in Article II refer only to the state legislature itself, or can it include the legislative power of the people to govern by initiative, recognized in a state constitution? The results may depend upon whether the conservatives on the Court will stick with a strict textual reading of the term "Legislature" set forth in a concurring opinion in Bush v. Gore to the detriment of Giuliani and upon whether the liberals on the Court will abandon their skepticism of the textualist reading of "Legislature" expressed in their Bush v. Gore dissents, to the detriment of Clinton. The irony meter is off the charts.

This Article examines the question of the constitutionality of changes to the Electoral College accomplished through the initiative process; it does not discuss the merits of either the Electoral College or reforms that have been proposed to change it (whether through the initiative process or otherwise). Part I gives the brief history of attempts to use the state initiative process to change the rules for choosing presidential electors, beginning with Colorado's Amendment 36, which failed to pass in the 2004 election, to the current California measure, whose fate is unclear as of this writing. It also explains that even if the California measure fails to qualify or pass, this issue could well arise in a future election because of general dissatisfaction among segments of the population with the Electoral College system for choosing the President. Part II turns to the constitutional question whether initiated changes to rules for choosing presidential electors violate Article II. It offers an analysis of the question based upon the text of Article II, relevant Supreme Court caselaw involving Article II, as well as Articles I and V, and the possible purposes behind Article II's use of the term "Legislature." It concludes that the issue of the constitutionality of initiated Electoral College reform is a difficult one to resolve about which reasonable jurists will differ, and because of that difficulty resolution by the Supreme Court could appear to be colored by the political considerations of who could lose or win by resolution of the question raising the specter of another Bush v. Gore. Part III concludes with two strategies that can help avoid the Article II question from becoming the next Bush v. Gore. First, courts should be more willing to engage in pre-election review of such measures, so that these issues can be resolved before, rather than after, an election. Second, Congress should consider amending the Constitution with an election administration amendment that would impose a two-year waiting period before any state's changes to Electoral College rules may go into effect. An amendment changing the Electoral College itself would be difficult to pass through Congress and the states. But my proposal is a neutral amendment ex ante that could decouple the consideration of the merits of Electoral College reform from the short term political advantages that could come from such a change.

Is the American Center for Voting Rights Making a Comeback?

See here. Perhaps Hearne is filing the brief in Crawford for another party. I had surmised on Monday that the Lawyer Defense Fund was going to pick up where ACVR left off.

"Money adds new dimension to 'veepstakes'"

Matthew Sanderson has written this Ideas column for the Politico. A snippet: "For the first time, this election's vice presidential candidates may be selected partly because of their willingness to empty deep pockets. The '08 presidential nominees will consider a potential running mate's personal wealth right along with his electoral appeal and policy prowess."

"Top 7 Questions on Florida and Michigan Primaries"

CQ Politics offers this primer.

"New 527 group takes aim at campaign contribution limits"

The Hill offers this report.

NPR's "Justice Talking" on Campaign Finance

This week's "Justice Talking" program features stories about, among other things, campaign finance. Listen to Teaching Campaign Finance Law with Doritos (on the Colbert candidacy, featuring interviews with Allison Hayward and me) and this debate between Trevor Potter and Bob Bauer on (what else?) campaign finance restrictions.

Government Files Response in FEC v. Davis Case

Via Ballot Access News comes word of this motion to dismiss or affirm filed by the government in the FEC v. Davis case. My earlier post, calling this an election law "cert. petition to watch," is here.

"Judge Upholds Sanctions Against Florida Democrats"

CQ offers this report on a very expected result. Sen. Nelson says he will not appeal.

"Can $2 Million for a Judge Buy a $350 Million Tax Refund?"

James Sample has this post at the Huffington Post.

"A New Chance to Make Presidential Campaigns about Voters Not Dollars"

This post on new legislation to revitalize the presidential public financing system appears on the Public Citizen "Watchdog" blog.

Pozen on "The Irony of Judicial Elections"

David Pozen has posted this draft on SSRN (forthcoming, Columbia Law Review). Here is the abstract:

Judicial elections in the United States have undergone a dramatic transformation. For more than a century, these state and local elections were relatively dignified, low-key affairs. Campaigning was minimal; incumbents almost always won; few people voted or cared. Over the past quarter century and especially the past decade, however, a rise in campaign spending, interest group involvement, and political speech has disturbed the traditional paradigm. In the "new era," as commentators have dubbed it, judicial races routinely feature intense competition, broad public participation, and high salience.

This Article takes the new era as an opportunity to advance our understanding of elective versus nonelective judiciaries. In revisiting this classic debate, the Article aims to make three main contributions. First, it offers an analytic taxonomy of the arguments for and against electing judges that seeks to distinguish the central normative concerns from the more contingent, empirical ones. Second, applying this taxonomy, the Article shows how both the costs and the benefits of elective judiciaries have been enhanced by recent developments, leaving the two sides of the debate further apart than ever.

Third, the Article explores several deep ironies that emerge from this cleavage. Underlying these ironies is a common insight: As judicial elections achieve greater legitimacy as elections, it will tend to undermine the judiciary's distinctive role and our broader democratic processes. There is an underappreciated tradeoff between the health of judicial elections and the health of the judiciary, the Article posits, that can help recast the controversy over the new era.

"Secretary of State's Office Might Investigate Muncie Election"

See this report from Indiana.

"Plan Calls for Voting Shake-up; Bipartisan duo hope to end Iowa, N.H.'s early presidential contests"

The Detroit News offers this report.

"Stalling the Vote in Mississippi"

The Commercial Appeal (Memphis) offers this editorial.

"Nonprofits Become A Force in Primaries"

The Washington Post offers this front-page report.

In the Election Law Mailbag

Josha A. Douglas, Note, A Vote for Clarity: Updating the Supreme Court's Severe Burden Test for State Election Regulations That Adversely Impact an Individual's Right to Vote, 75 George Washington L. Rev. 372 (2007).

Another Anonymous Article Defending Laws Against Voter Fraud

This one is by "Wright Talley," " the pen name of a long-time congressional employee." Why is it that these arguments are being made anonymously? If they are credible arguments, let's hear who is making them. (The most famous instance of an anonymous law review article is that of FEC Commissioner von Spakovksy, whom I identified as "Publius" last year.)

Speaking of groups speaking out against voter fraud laws, I just received this letter from a group called the "Lawyer Defense Fund" indicating the group's intention to file an amicus brief supporting the state in the Crawford (Indiana voter id) case. (I filed an amicus brief supporting petitioners in the case. As an aside, under the new Supreme Court rules such a letter is only required when filing amicus support for a cert petition, not a brief on the merits.) I had not heard of the group, which the letter described simply as a "501(c)(4) non-profit organization." A little googling led me to the Republican National Lawyers Association website, and in particular the RNLA President's Message: "We will also be holding our 4th Annual Lawyer of the Year Reception this fall in Washington, D.C. Lastly, and importantly for our future, Harvey Tettlebaum, Craig Burkhardt, David Norcross and Kevin Hall are in the process of ramping up our new 501(c) 4 organization, Lawyers Democracy Fund, that will enable us to bring in additional resources to support our election integrity and other programs."

I think it will be useful in reading this brief that it is authored by lawyers from the Republican National Lawyers Association (just as it is useful to know a brief is authored by lawyers from the ACLU, Brennan Center, or any other liberal organizations).

"The FEC On its Sick(Death?) Bed"

Bob Bauer's latest.

"Conference Call: Budget Law Challenge Heads to High Court; Justices asked to consider whether the Deficit Reduction Act of 2005 was properly passed by Congress"

Tom Goldstein has written this Legal Times column about the cert petition in Public Citizen v. U.S. District Court.

"Elections officials side against Voter ID law"

AP offers this report.

"Electoral Bid's Time Crunch; GOP-backed intiative may miss June vote, aim instead for November."

The Sacramento Bee offers this report.

"Governor to Head Redistricting"

The Sacramento Bee offers this report.

"Governor to Head Redistricting"

The Sacramento Bee offers this report.

"Clinton-Obama Feud Focuses on Leadership PACs"

CQ Politics offers this report.

"OSU experts urge Ohio to scrap its elections system"

The Cleveland Plain Dealer offers this report. See also this Columbus Dispatch report and see here on OSU's recommendations for Illinois.

You can now find the entire study, From Registration to Recounts, at the Moritz site. Congratulations to my Moritz friends for this accomplishment. I look forwarded to reading it.

" Bringing Voting Rights to Overseas and Military Voters"

The Century Foundation has issued this report. See also this press release.

Stephen Griffin: "Reflections on Bush v. Gore"

Here at Balkinizaton.

EAC Report Now on EAC Website; Has Been Posted on Eagleton Site

Following up on my post yesterday about a report on provisional voting commissioned by EAC but not appearing on the EAC website, I received the following email from Jeannie Layson of the EAC (reprinted here with permission):

Per your posts today, just wanted to let you know that I have added these materials to our FOIA Reading Room here. I will add other links to the material in other places on the site, but I wanted to let you know that it is immediately available. The EAC has been providing the draft report to anyone who asked for it, but it also should have been posted in the Reading Room. (The draft report was presented in May 2006 at a Standards Board meeting that was open to the public.) The web site is my responsibility, so your criticism should be directed at me for this oversight, not the EAC. For your information, this material has been available on Eagleton's website for quite some time. However, it should have been posted on our site as well. Please don't hesitate to contact me in the future if you are looking for documents or materials or have questions or concerns about the EAC web site -- I'd be glad to assist you. Thank you for your consideration in this matter, and call me if you have any questions.

"FEC Nomination Deadlock Persists"

Roll Call offers this report ($).

State Files Brief in Crawford, the Indiana Voter ID Case

Here is the state's brief on the merits. You can find a post about respondent Marion County's merits brief (which actually supports petitioners) here. (Disclosure: I filed this amicus brief supporting petitioners in this case).

"Term Limits Measure May Confuse Voters"

The San Diego Union Tribune offers this report.

Part II of OSU Symposium on Election Law and the Roberts Court is Now Available

The must-read articles will appear in the Ohio State Law Journal, and you can find them here. Part II focuses on Election Administration and Redistricting. Part I, on General Themes (Pam Karlan and Michael Solimine---both not to be missed) and campaign finance is here.

"Crucial Test for Ethics Reform"

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

"Citizenship in Sight, But Then She Voted"

The Chicago Tribune offers this report.

Harvard Law Review Case Note on WRTL Now Available

You can find it here. I was gratified to see a posting from the Election Law Blog cited as authority in this article (in fn 70), but under the current nonsensical bluebook rules, the citation omits the name of the author of a posting on a blog written by a single author.

Another Report to the EAC Buried?

In May 2005, the U.S. Election Assistance Commission awarded a contract to the Eagleton Institute of Politics (which subcontracted with Election Law @ Moritz) to produce a study on provisional voting. On July 28, 2005 Thomas O'Neil and Dan Tokaji gave a powerpoint presentation about the status of the research on provisional voting, indicating that much of the research was already completed.

The EAC never released that study. At a Feb 2007 meeting of the EAC, EAC researcher Karen Lynn-Dyson described (pdf pp. 114-116) the various Eagleton projects (including the controversial voter identification report, which the EAC has never adopted but which it eventually released under pressure). Speaking of the provisional balloting study, Lynn-Dyson remarked: "Findings from Eagleton's study of provisional voting that was a part of EEG's overall study were included in EAC Best Practices On Provisional Voting, which this agency published in October, 22 2006." (You can find that best practices guide here.)

But it does not appear the the EAC ever released the underlying Eagleton study. Why not? According to this testimony from Christopher Thomas of the EAC Board of Advisors, the Board found the provisional balloting study "lacking in significant areas." See also pp. 24-25 here, where Mr. Thomas (misidentified as Mr. Nelson on the transcript, which also has the wrong date), states: "we did see the provisional balloting study before it was released, and I do understand that once its given to the board, it becomes a public document. We found some definite issues in that report, and I think the comments from both boards serve the process well, in terms of having that report brought up to snuff, if you will." I did not see any further discussion of what issues the Board of Advisors may have had with the study.

As I said, it appears the report has never been released (despite the understanding of Mr. Thomas in the quote above that the report became a public document when given to the Board for review). Someone (unrelated to Eagleton, Moritz, or the EAC) sent me the report, and I am posting it here along with the appendices. In light of the EAC's commitment, following past controversies, to release all of its reports I do not understand why this report was not released. (Perhaps it has been released and is simply not on the EAC website.) If there are methodological problems with the report, as the EAC claimed with voter id, it could have released the report without endorsing its findings.

Eagleton Report on Provisional Voting
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F, 491 pages of state statutes, is too large for me to post.

"Secretary of state casts doubt on future of electronic voting"

The SF Chronicle offers this report.

Hayward on "Revisiting the Fable of Reform"

Allison Hayward has posted this article at Berkeley Electronic Press (forthcoming, Harvard Journal on Legislation). Here is the abstract:

The modern campaign finance fable has its root in progressive political arguments. Advocates placed great faith in the management by experts of social problems, and the application of scientific principles to politics. For campaign finance reform, this meant the study of campaigns, the diagnosis of corruption and the prescription of legislative remedies. To sustain this idea over time, as it turns out, required a fable. That fable justified past reform efforts as calculated, measured and reasonable remedies, prescribed by Congress (or legislators, or regulators) after careful examination of political ailments. As new symptoms arise, the fable taught that lawmakers (or regulators) are justified in revisiting the diagnosis, unfettered by judicial interference or constitutional constraint.

In the Supreme Court's 1957 majority opinion in United States v. UAW-CIO, known more commonly as Auto Workers, Justice Frankfurter added the necessary history to makes the reform fable work. Subsequent campaign finance decisions lean heavily on this account of the reasonable and measured history of campaign finance regulation. Judges rely on the decision’s expression of "history" to justify deference to regulatory judgments.

This Article corrects and supplements the history in Auto Workers. It examines in detail the specific events Frankfurter cited in the opinion. It shows how the opinion avoided political context and truncated legislative history. What emerges from a more complete account of the history is a messy, complicated record, dictated by political opportunism. At each step, reform is a way to capitalize on public sentiment (against the Sugar Trust, or John L. Lewis, as we shall observe) and restrict political rivals' access to financial resources, using little debated legislative vehicles and parliamentary skill.

If Congress's credibility as a source of reform is derived from a mistaken view of its record, then judges may be too willing to accept Congress's rationalizations for legislative choices. If, out of misplaced respect for a fable, courts allow enforcement of laws that burden political activity, citizens and activists outside the bubble of Congressional protection risk disproportionate punishment for exercising political rights. Correcting the flawed historical premise, and setting courts to the task of evaluating closely all these laws, would go some distance to restoring proper checks upon campaign legislation. Courts, legislators, and lawmakers need to understand history. Especially in campaign regulation, where high purpose can conceal self-interest, it does no good to adopt a fable as history, or adapt history to a fable.

"Gov. Doyle: Calls special session of Legislature on campaign finance reform"

See this news from Wisconsin.

"Everything You Ever Wanted to Know about the Iowa Democratic Caucus...But Were Afraid to Ask"

FairVote has this very interesting post.

"Bringing Democracy Home"

See this post on the blog of The Nation.

One of the Respondents in the Indiana Voter ID Case Files Supreme Court Brief Supporting Petitioners

Interesting developments in the Indiana voter id case before the Supreme Court (Crawford). I have uploaded the brief of the Marion County Election Board here. The brief supports the position of the petitioners and some amici (including the position in my amicus brief) that the Court should closely scrutinize this law. It also strongly pushes the point that there is no evidence of impersonation voter fraud to support Indiana's law.

I don't expect the state's brief to take the same position. Indeed, the state asked Justice Stevens (as Circuit Justice) for permission to file an oversize brief. Justice Stevens denied the request. I expect the state and Secretary Rokita to vigorously defend Indiana's law. The big unanswered question is whether the Bush administration, through the SG's office, will file a brief supporting the state. The state's brief is due next week.

"Electoral College campaign still needs signatures; Backers of plan to alter California's winner-take-all vote miss deadlines."

The LA Times offers this report. I should have a draft of my paper on the constitutional questions surrounding this initiative posted by some time next week.

"New Law On Bundling Disclosure Not Likely To Add Much Information"

CQ offers this report.

"Democrats angry over recount mailing"

This story from Muncie, Indiana begins: " Republicans are being deceitful in their investigation of possible voter fraud in the mayor's race, Democrats alleged this week."