"State and Local Politics: Institutions and Reform"

Todd Donovan, Christopher Mooney, Daniel A. Smith have published this new book that may be of interest to Election Law Blog readers.

"Editorial: State should ban annoying 'robo-calls'"

See this editorial from a Wisconsin newspaper.

GAO Report on Voter Accessibility Issues for Elderly Voters

You can find it here.

"If Prop. 93 wins, hot campaigns disappear"

The SF Chronicle offers this report.

"The New Rules of Politics"

Karl Rove has written this Wall Street Journal column.

"While the Watchdog Election Wanders"

The NY Times offers this editorial. A snippet: "We urge the Senate majority leader, Harry Reid, to highlight this blot on democracy by moving the von Spakovsky nomination as a separate measure and demanding a cloture vote. Force the Republicans to either filibuster against their own unqualified partisan or dare to vote for him in broad daylight."

Interesting Election Law Articles in Michigan Law Review's First Impressions

See this pdf with articles by Dan Tokaji, Tom Hiltack (on the California electoral college measure), Sam Hirsch (on the same measure), John Mark Hansen, Ethan Leib, and Alexander Belenky. This looks like it will be an enjoyable (and relatively quick) read. Abstracts of each article are here.

"When Math Warps Elections"

Sharon Begley has written this On Science column for Newsweek.

Reform Institute Study on Presidential Candidate Ballot Access

You can find the report here and a press release here. Richard Winger, who knows more about ballot access laws in the U.S. than anyone I know, calls the report's state-by-state survey massively inaccurate.

Thanks to Dan Tokaji for Guest Blogging

It was nice to leave the blog in such good hands as I traveled to the East Coast. On this trip I spent more time travelling than being in Williamsburg. But it was an honor (and a little intimidating) to be addressing a room full of state Supreme Court Chief Justices (especially when I was discussing some of their recent opinions!).

"Dead woman votes in StL primary"

The St. Louis Post Dispatch offers this report, which begins: "The St. Louis Election Board discovered that a woman dead since October cast an absentee ballot in the city presidential primary, an official said." As usual, voter fraud that comes to light almost always involves absentee ballots, and not impersonation voter fraud at the polls.

New Blog on California Punitive Damages

The good folks at Horvitz and Levy, where I worked before entering academia and where I continue to occasionally consult, have started a new blog, California Punitive Damages. This is sure to be the go-to site for issues related to punitive damages, especially, but not only, in California. Welcome to the blogosphere!

What I Was Thinking About Sen. McCain's Possible Supreme Court Appointees

American Thinker blog: "McCain would be hard-pressed to identify a candidate for the Supreme Court who both agrees with him on restrictions of political speech and thinks Roe v. Wade is constitutionally wrong." UPDATE: Bob Bauer comments.

"Fiscal Challenges: An Interdisciplinary Approach to Budgeting"

Elizabeth Garrett, Elizabeth A. Graddy and Howell E. Jackson have edited this new Cambridge volume.

"Mukasey Urged to Step Up Efforts to Enforce Lobbying Disclosure Law"

BNA has this story (subscription required), which reports that the Campaign Legal Center has urged the Attorney General "to beef up efforts to enforce the Lobbying Disclosure Act, following reports by BNA that the Justice Department has done little to enforce the lobbying law, except to write letters to possible violators."

"McCain, Edwards Face Extra Cash Hurdles"

The Politico offers this report on the challenges these candidate face given their acceptance of public financing -- though Edwards would-be dilemma now appears to be moot given his imminent withdrawal.

"Ohio Votes: Civic Engagement in the Buckeye State, 2002-2006"

Project Vote has released this report by Benjamin Spears, examining rates of voter participation in Ohio. Among its findings, according to the press release, are:

- Ohio's population become more diverse from 2002 to 2006; in part because of a net decline in the White population and in part because the Latino and Asian populations grew by of 14 and 17 percent, respectively.

-A greater percentage of eligible White and Black Ohioans were registered in 2006 than in 2002.

- Ohio's registration rate disparity between White and Black eligible voters was more pronounced in non-presidential elections, including 2002 and 2006.

- Ohioans were more likely to have voted in the 2006 election than were Americans as a whole.

- Older voters make up a larger share of the electorate than their share of the voting-eligible population merits: 4 of 5 Ohioans over age 30 were registered to vote; less than 3 of 5 Ohioans under 30 were registered.

- The disparity in voting rates between racial and ethnic groups in Ohio widened between 2002 and 2006.

"Political Uses of Political Law"

Bob Bauer offers these thoughts growing out of the prosecution of Geoffrey Fieger for alleged campaign finance violations.

"Outside Groups Aid Obama, Critic of Their Influence"

The New York Times reports here on the efforts of 527s and other groups supporting Senator Obama's candidacy.

"Florida's Democratic Delegate Mess"

The NYT's politics blog has this report. See here for more, including a discussion of the potential for litigation.

Voting Early in Tennessee

Early voting is way up in Tennessee according to this post from Paul Gronke on the Election Updates blog.

"Votes of Some Who Lacked Photo ID in November Didn't Count"

The AP reports here that fewer than half of Georgia voters who lacked the required photo ID had their votes counted, though the numbers are small.

"Long Lines, High Turnout, Few Glitches" in Florida

The Sun Sentinel offers this report on Election Day in the Sunshine State. The Palm Beach Post reports here and Florida Today here on some scattered glitches.

"How to Steal an Election Without Breaking a Sweat"

No, this isn't about Ohio. See here for Foreign Policy magazine's summary of different ways in which "autocratic regimes have become adept at manipulating 'free and fair elections' to stay in power."

"Looking Anew at Campaign Cash and Elected Judges"

The New York Times offers this report.

"Are States Ready for the 2008 Election?"

Indiana's Secretary of State Todd Rokita and American University's Bob Pastor debate the question here on Stateline.org.

"Investigating Voting Rights in Colorado"

Project Vote has released this report by Jody Herman and Douglas Hess on Colorado's Compliance with the National Voting Registration Act (NVRA) at public assistance offices. According to this press release, the report finds "consistently low rates of registration in public assistance offices despite Colorado's significant population of unregistered low-income citizens."

"Federal Monitors Will Watch Over Polling Sites"

The Miami Herald has this story on the Justice Department's plans to monitor Broward County polling places today.

ACLU Seeks Injunction to Stop Cuyahoga County's Voting Machine Switch

The ACLU has filed a motion for a preliminary injunction to stop Cuyahoga County from replacing its touchscreen voting system with a central-count optical scan system. The ACLU's press release and papers may be found here, and the AP has this report.

Plaintiffs in ACLU of Ohio v. Brunner argue that the planned switch would deny voters notice and the opportunity to correct mistakes, in violation of the Equal Protection Clause and Section 2 of the Voting Rights Act. The claims are similar to those raised in the Stewart v. Blackwell case, which was found to be moot after Ohio got rid of its non-notice equipment in 2006. (Disclosure: I was co-counsel in Stewart and have consulted with the ACLU on its new case. - DT)

"New York Closer to Better Voting Machines"

Newsday offers this editorial on New York's ongoing efforts to comply with the Help America Vote Act by replacing its lever voting machines and providing accessible technology -- two years after these requirements went into effect.

Ohio's Latest Voting Machine Flap

The Columbus Dispatch has this report, the Cincinnati Enquirer this one, and the AP this one, on the controversy regarding Ohio Secretary of State Jennifer Brunner's proposal to replace the state's touchscreen voting systems by November.

"A Paper Jam Roils California"

Today's LA Times has the first of two parts on "a rush in the state to replace decertified electronic devices with printed ballots and scanners."

The Hayward-Becker Debate on Voter ID

The Federalist Society's website features the latest round from this debate-in-progress between Allison Hayward and Dave Becker regarding voter ID and the Crawford v. Marion County case.

"Asian American Access to Democracy in the 2006 Elections"

The Asian American Legal Defense and Education Fund has released a new report, available here, on obstacles faced by Asian American voters in nine states. According to AALDEF's press release, the report's findings include:

-- Poll workers made improper or excessive demands for identification -- often only from Asian American voters -- and misapplied HAVA's ID requirements. In Boston, an interpreter appointed by the Elections Department required all Chinese-speaking voters to show IDs before they could receive a translated ballot; none of the English-speaking voters were similarly asked for their IDs.

-- Poll workers hindered voter access to interpreters and translated voting materials required under the Voting Rights Act. In New York, Chinese American voters were given Spanish-language ballots.

-- Asian American voters' names were missing or incorrectly transcribed in voter lists at poll sites. HAVA requires that these voters be offered provisional ballots, but poll workers denied voters this right. In New Jersey, poll workers told Asian American voters to go to the Borough Clerk's office.

-- Poll workers were unable to direct voters to their proper poll sites or precincts. In Philadelphia, one voter was driven to tears after being sent to several places and given no correct addresses. In New York, a husband and wife were improperly sent to different lines at different election districts within the same poll site.

"ID Views Heat Up Voter Fraud Hearing"

The Dallas Morning News has this story reporting on a hearing on election fraud in Texas --and whether it would be prevented by a proposed law requiring photo ID.

The Raucous Caucuses

Thomas Mitchell has this column, which responds in part to Nate Persily's comments on the move from caucuses to primaries (and possibly back again in Nevada).

Substitute Blogging

At Rick's gracious invitation, I'll be guest-blogging here for the next couple of days. If you come across something that warrants a post, feel free to email me through the link provided here. -- Dan Tokaji

Light Blogging Through Middle of Next Week

I'm off to the National Center for State Courts in Williamsburg, Virginia Monday to talk to the Conference of Chief Justices about election law litigation. Blogging will be light through Wednesday.

Political Motivations in Fieger Campaign Finance Prosecution?

From this Detroit Free Press report:

Fieger, a former Democratic candidate for governor, contends the probe was ordered by the Bush administration, which appointed Murphy as U.S. attorney in Detroit.

[U.S. District Judge] Borman said there are several unusual aspects about the case.

He said prosecutors failed to get Justice Department approval to conduct the investigation of campaign contributions until seven months after it started, a violation of department rules governing probes of campaign contributions.

He said prosecutors have admitted that this is the first prosecution of its type in eastern Michigan in at least 25 years. The Federal Election Commission normally handles such probes as civil case.

NYT Profile of Judge Lopez Torres

Here.

More Bauer on SpeechNow.org

Here.

"All Right---I'll Vote for Me, Too"

This entry at Al Kamen's "In the Loop" column for the Washington Post would be funny if the situation at the FEC were not so pathetic.

"Texas voter ID opponents, supporters embark on new battle"

AP offers this report.

Two Studies on VRA Section 203

Pursuant to the statute renewing expiring provisions of the VRA last year, the GAO was commissioned to do a report on the language assistance provisions of VRA section 203. It has now issued Bilingual Voting Assistance: Selected Jurisdictions' Strategies for Identifying Needs and Providing Assistance.

You can also find another study, Government Effectiveness and Efficiency? The Minority Language Assistance Provisions of the VRA, by James Thomas Tucker & Rodolfo Espino reprinted here with the permission of the Texas Journal on Civil Liberties & Civil Rights, where this article initially appeared.

More on SpeechNow.Org Advisory Opinion

On the SpeechNow.org request for an advisory opinion, Commissioner Mason has dissented from the draft advisory opinion (that cannot be approved in any case because the FEC lacks a quorum). The dissent raises one of the most important unanswered questions surrounding the constitutionality of campaign finance laws: does Congress have the power to limit contributions to committees that make only independent expenditures?

See this statement from the Center for Competitive Politics. Bob Bauer says it is now up to the courts.

"Tune In, Drop In, Vote Now: A Simpler Path to the Polls"

Peter Applebome has written this opinion piece on election day registration for the NY Times.

"Brennan Center Criticizes DoJ Approval of Voter Registration Law"

See this press release.

Marci Hamilton on Lopez Torres

See this Findlaw column.

"Who decides who'll be allowed on TV debates?"

The SF Chronicle offers this report.

"ID Laws Spur Legal Battle"

AP offers this report.

"Partisanship and the Dark Side of Election Law"

Bob Bauer's latest post begins: "Rick Hasen has attempted to describe for a foreign audience, Australians, the dilapidated, ever-on-the-brink-of collapse electoral process in the United States. He says that things are generally a mess, spread among jurisdictions that are free to run elections as they wish, are overseen by partisans and are only irregularly held to professional standards. Such a foul state of affairs predictably produces a Bush v. Gore or a spoiled Congressional election like Florida's 13th. It is just good fortune that elections are only rarely decided by a hair, when dysfunction is consequential and hard to ignore, and we can get by more generally, with limited discomfort, because of the apparently infinite tolerance of the voter."

"Voter ID Rule Finds Support"

The Washington Times offers this report, which begins: "Two-thirds of Americans, including a majority of racial and ethnic minorities, say the government should make voters show photo identification before voting, according to a new Fox 5/The Washington Times/ Rasmussen Reports survey." See also this related editorial.

"Long Election Night Likely; Sacramento County machine flaws to delay results"

The Sacramento Bee offers this report.

"Village's At-Large Voting is Found to Be Biased" [corrected headline]

The NY Times offers this report on the Port Chester, NY VRA litigation. UPDATE: You can read the decision itself here.

"Judge rules against counties in vote count dispute"

The Riverside Press Enterprise offers this report, which begins: "A San Diego County judge Tuesday ruled against four counties, including Riverside and San Bernardino that sought to block additional rules imposed by Secretary of State Debra Bowen for the February presidential primary."

Citizens United Files Jurisdictional Statement, Motion to Expedite, Etc.

Lyle Denniston has the details and analysis at SCOTUSBlog.

Under the proposed briefing schedule, the Court would consider whether to hear the appeal at its Feb. 15 conference, with a decision in the case on the merits by June.

My prediction is that the Court will end up not hearing this case on the merits at the preliminary injunction stage, but I do not have a high degree of confidence in the prediction.

"UK vote system 'open to fraud'"

The BBC offers this report, which begins: "It is 'childishly simple' to register bogus voters in UK elections, a human rights body's investigation suggests. The Council of Europe's report said the British voting system was 'open to fraud', particularly with postal votes."

'On Lopez Torres and Line Drawing"

Chris Elmendorf has written this commentary for Election Law@Moritz. It concludes: "If so, this is of considerable moment for lawyers and judges struggling to apply the Storer-Burdick framework for judicial review of electoral mechanics in new contexts (think voter ID). It will not do simply to call upon the courts to balance voter and state interests and draw hard lines--the tack pursued during oral argument by the petitioner’s lawyer in Crawford v. Marion County Election Board, the pending case about Indiana’s photo ID requirement for voting. Rather, it is incumbent upon plaintiffs to present and defend reasonably mechanical rules that would serve, at least presumptively, to separate 'severe' from 'lesser' incursions on constitutionally protected interests. Plaintiffs who cannot articulate such a standard and anchor their claim to it now stand to lose on political-question-like grounds."

Read Chris's post. It seems to me that Chris's analysis assumes the Court is consistent across cases. The Court could well decide the voter id case without even citing Lopez Torres, much less applying any new standard that may be lurking in the case.

"FEC Draft Opinion Would Silence SpeechNow.org"

The Center for Competitive Politics has issued this press release.

"The Next Hanging Chad"

Seth Gitell has written this commentary for the NY Sun. It begins: "The 2008 election could do for the party nominating process what the 2000 election did for the general election: shine the spotlight into an area that could afford a little close examination."

"Mistrust of Voting Machines on the Rise"

The Houston Chronicle offers this report.

"Florida law school to help U.S. Virgin Islands draft constitution"

Michael Richardson has the news.

Morgan Kousser Reviews Landsberg, "Free at Last to Vote"

Here, at the Law and Politics book review.

"Amendments aren't needed - it's up to the states"

Pam Wilmot has written this Boston Globe oped on the National Popular Vote.

"One Teen's Campaign To Restore Voting Rights"

The Washington Post offers this report.

"Attorneys Probe Deepens"

The Hill offers this tantalizing report, which begins: "The federal investigation into the firing of nine U.S. attorneys could jolt the political landscape ahead of the November elections, according to several people close to the inquiry."

"Voting system is haunted by democratic meltdown"

I have written this oped for Tuesday's Canberra Times (Australia). It begins:

The protracted 2008 US election season got its official start this month, with voting for presidential party nominees in Iowa, New Hampshire, South Carolina and Nevada. But while much of America's attention is focused on the race leading up to the November election, the under-reported story is how the US electoral system remains haunted by the ghost of the democratic meltdown of 2000, which culminated in a US Supreme Court decision that handed the presidency to George W. Bush, rather than Al Gore. US election administration has become more politicised and partisan since 2000, and could even affect the outcome of the 2008 presidential contest.

It concludes:

The main bulwark against this kind of problem is not the American political establishment, which has proven itself incapable of enacting a fair and nonpartisan electoral system befitting a mature democracy. Instead, we put our faith in the law of numbers. We should all utter the US election administrator's prayer: "Lord, let this election not be close."

Another problem with the New York State Judicial Selection Process?

See here.

"In twist, GOP candidates eye California's Democratic districts"

AP offers this report.

"Young activists mobilize against ID law"

The Politico offers this report.

"Elections chief finds surprises in first year"

AP offers this report on Ohio Secretary of state Bruner.

"Campaigning for winners can give lobbyists a leg up"

The Dallas Morning News offers this report.

"After Nevada Caucuses, Charges of Foul Play"

This post appears on one of the Washington Post's political blogs. See also this post at the Alternet blog, featuring quotes from Bob Bauer and Tova Wang on the situation in Nevada.

"Multiple-party endorsements for candidates weighed"

AP offers this report.

"Redistricting lawsuit threatens NC primary schedule again"

AP offers this report.

"In Politics, Winners Get the Spoils, Losers Goes to Court"

Susan Estrich has written this piece for FoxNews.com. It begins: "Election law, like political science (which I also teach) is something of an oxymoron, particularly in the heat of a political season."

"Voting Technology and the 2008 New Hampshire Primary"

Michael Herron, Walter Mebane, and Jonathan Wand have written this draft. A snippet from the executive summary: "With respect to Hillary Clinton's surprise victory in the Democratic Primary and the differences across vote tabulation technologies in Clinton's and others' votes, our results are consistent with these differences being due entirely to the fact that New Hampshire wards that use Accuvote optical scan machines have voters with different political preferences than wards that use hand counted paper ballots."

"Perspective - Supreme Spotlight on a 'Stupid' System"

James Sample and Richard Samp (an odd couple, to say the least) have jointly written this oped on Lopez Torres for the New York Law Journal.

Two California cases of note

A California court of appeal issued this opinion in Nguyen v. Nguyen, involving recounts and electronic ballots.

A California superior court has issued this tentative decision in a dispute between San Diego and Secretary of State Bowen about post-election audits.

"Lawsuit seeks to stop county voting switch"

AP offers this report, which begins: "A federal lawsuit filed Thursday seeks to block Ohio's biggest county from switching to a paper ballot voting system for the March 4 presidential primary." You can find the ACLU's complaint here.

More Commentary on Lopez Torres

Allison Hayward

Bob Bauer

NY Daily News

Newsday

"Three Key Developments Relating to the Election and the Constitution: The National Popular Vote Plan, a Mississippi's Court's Special Election Mandate, And the Challenge to Nevada's 'At Large' Caucus Site Rule"

Vik Amar has written this Findlaw column.

"Dan Walters: Two-party structure under fire"

See this Sacramento Bee column.

"Can America Run a Fairer Election?"

US News and World Report offers this report. The magazine also offers a sidebar, "The Legacy of Hanging Chads."

Three at Scotusblog

Lyle Denniston writes Kucinich Seeks to Get on Texas Ballot (I expect this application to fail) and Court Appeal Set on Promo of Campaign Film (about the Citizens United case). Lyle links to the notice of appeal, which answers one of the questions I raised earlier about the scope of the possible appeal. It will not include another challenge to the corporate PAC requirement, at least not at this stage.

Also at Scotusblog, my former student Scott Street offers this analysis of Lopez-Torres.

"Supreme Court divide threatens to deepen; Gun rights, voter ID laws among issues before justices"

USA Today offers this report.

"Judge Dismisses Nevada Caucus Challenge"

AP offers this report. There will probably not be an appeal.

"Voter-Fraud Rethink"

John Fund has written this provocative piece for the Wall Street Journal.

Lopez Torres Roundup

Howard Bashman links to the major stories here and here. See also Bob Bauer.

"A Quick Fix for Electronic Voting"

The NY Times offers this editorial.

California Appellate Court Strikes Down Rule Limiting Circulators of Local Referendum Petition to Local Residents

You can find the opinion in Preserve Shorecliff Homeowners v. City of San Clemente at this link.

Citizens United Appeal to Supreme Court

Yesterday, I predicted that Jim Bopp would file in the Supreme Court an appeal of the denial of the preliminary injunction in the Citizens United case. Today I received a press release confirming this is now the case:

Citizens United appealed today to the United States Supreme Court the U.S. District Court's ruling yesterday in Citizens United v. Federal Election Commission, the latest challenge to the McCain-Feingold campaign finance law.

A three-judge panel ruled yesterday that Citizens United cannot run ads for its new documentary film, Hillary The Movie, without disclosing the film's financiers or including a disclaimer about who produced the ads. The ads can be seen at www.hillarythemovie.com.

At issue is a section of the 2002 Bipartisan Campaign Reform Act that imposes a blackout period before elections on television advertisements that meet the law's definition of "electioneering communications." Last year, the Supreme Court held, in FEC v. Wisconsin Right to Life, that genuine issue ads could not be prohibited during the blackout periods, but the FEC has insisted that such ads must still contain a political disclaimer and be the subject of FEC reports which require disclose of contributors to the group running the ads. Citizens United challenged these disclosure provisions, arguing that since the ads are genuine issue ads, they cannot be subject to any regulation. Yesterday, the D.C. district court held that only the Supreme Court could decide whether the ads should still be subject to the disclosure provisions.

Citizens United filed their appeal to the United States Supreme Court today. "The ruling left the door open to appeal to the Supreme Court as the three judge panel felt constrained by conflicting Supreme Court precedent," said David Bossie, president of Citizens United. "We don't want our donors to be victims of the harassment by Clinton supporters when all we are doing is advertising a documentary."

According to James Bopp, Jr., attorney for Citizens United, "We will be asking the Supreme Court to decide the case expeditiously, and we believe that the Court could hear and decide this case by June."

Hillary The Movie is a 90-minute documentary on Hillary Clinton's record, drawing from nearly 40 interviews with individuals and opinion makers who personally locked horns with the Clintons. The film features interviews with former Clinton adviser Dick Morris, columnist John Fund, former House Speaker Newt Gingrich, and many others.

The movie is being sold on DVD and is scheduled for nine screenings in theaters.

A few quick reactions. First, it is not clear to me whether there will be an application for some kind of emergency relief here, or whether Citizens United will be seeking only expedited consideration of its appeal. Second, it is not clear to me whether or not Citizens United will be appealing that part of the ruling barring the use of corporate funds to pay for this movie on television, or whether this is only an appeal on the disclosure issues. Third, though the Citizens United official mentions fear of "harassment," that was not the basis of the claim for an exemption from the disclosure provisions made in the lower court (and subject to the test set forth in Brown v. Socialist Workers Party). Instead, the claim in the lower court was that there need be no disclosure of any funders of electioneering communications if they fall into the WRTL exemption (which allows using corporate and union treasury funds to pay for such communications in some circumstances). A ruling exempting ECs from disclosure any time they could get the WRTL exemption would be troubling indeed, for reasons Richard Briffault and I gave to the FEC. Finally, I presume the FEC can fight this appeal through the SG's office, despite the fact that the FEC lacks a quorum to make certain decisions on litigation.

"The Pew Center on the States and the JEHT Foundation Award $2.5 Million to Improve U.S. Elections"

See this press release.

Supreme Court Unanimously Reverses in Lopez-Torres, Upholding NY Primary System for Choosing Judges

The opinions are here. Justice Scalia wrote for the Court; Justice Stevens, along with Justice Souter, concurred and offered a one-paragraph addendum which concludes: "I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: 'The Constitution does not prohibit legislatures from enacting stupid laws.'" Justice Kennedy, joined by Justice Breyer, concurred in the judgment.

The result in this case is not surprising, nor is the unanimity. I think the part that will get the most attention from election law scholars is the discussion in Justice Scalia's opinion rejecting an idea that "one party entrenchment" violates the First Amendment and Justice Kennedy's concurrence, which reads the First Amendment as providing more protection for the electoral process. No doubt, too, we will be examining Justice Kennedy's opinion for what it might tell us about how the Court will rule in Crawford, the Indiana voter ID case.

"Timing May Sink Lawsuit Aimed at Strip Voting"

The Las Vegas Sun offers this report on whether laches may bar an equal protection challenge to the Nevada caucus system.

Another Campaign Finance Case on the Fast Track to the Supreme Court?

On the heels of the Supreme Court's announcement a few days ago that it will hear a challenge the the "Millionaire's Amendment" to BCRA (McCain-Feingold), another case could soon be in front of the Court.

Today a three judge district court denied the request of a group, Citizens United, for a preliminary injunction barring the FEC from enforcing two BCRA rules. First, Citizens United wants to be able to use corporate funds in connection with showing an anti-Hillary Clinton movie on television in the period before the election. Second, Citizens United wants to be able to fund television advertisements for the movie (to be shown in movie theaters) without disclosing their donors.

The three-judge court opinion is very important as a first judicial precedent on two issues (issues which were recently considered by the FEC in a rulemaking before the FEC shutdown). First, the opinion sets forth its test of which "electioneering communications" count as the "functional equivalent" of express advocacy, which can still be subject to the corporate/union PAC requirement. On this score, the court writes:

Citizens contends that The Movie is issue speech and, as it stated in oral argument, that issue speech is any speech that does not expressly say how a viewer should vote. The trouble is that the controlling opinion in WRTL stands for no such thing. Instead, if the speech cannot be interpreted as anything other than an appeal to vote for or against a candidate, it will not be considered genuine issue speech even if it does not expressly advocate the candidate’s election or defeat. WRTL, 127 S. Ct. at 2667.

The Movie does not focus on legislative issues. See id.; 11 C.F.R. § 114.15(b). The Movie references the election and Senator Clinton's candidacy, and it takes a position on her character, qualifications, and fitness for office. See id.; 11 C.F.R. § 114.15(b). Dick Morris, one political commentator featured in The Movie, has described the film as really "giv[ing] people the flavor and an understanding of why she should not be President." Dick Morris, Hillary's Threat, Address (Mar. 2007) (available at www.citizensunited.org/blog/?entryid=4563815). After viewing The Movie and examining the 73-page script at length, the court finds Mr. Morris's description to be accurate. The Movie is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.

On the disclosure point, the court rejected the argument that the WRTL test applies to disclosure questions.

The attorney for Citizens United is Jim Bopp, who was also the attorney for the plaintiffs in WRTL. In that case, too, Bopp lost in his request for a preliminary injunction in the trial court. He sought to have Chief Justice Rehnquist, as Circuit Justice, reverse the three-judge court. The Chief declined to do so, allowing the case to be decided on the merits at final judgment. (At final judgment, the three judge court sided with the government. Bopp appealed, and the Supreme Court remanded for additional analysis. The three judge court then split 2-1 in favor of plaintiffs, and the Supreme Court in a 5-4 decision, affirmed.)

I expect that Chief Justice Roberts will be asked to step in at this stage. It will be very interesting to see if he adopts the position of his predecessor and declines to do so, or whether, given that the Citizens United case concerns the meaning of his dispositive opinion in WRTL, he refers it to the entire Court to vote whether or not to consider the case this term. There's still some room on the April calendar to consider the case. My bet would be that the Chief will decline to take action at this preliminary stage.

"NBC Fights to Keep Kucinich Out of Debate"

The NY Times reports that the Nevada Supreme Court will hear oral arguments on the question at 4:30 pm today, with the debate scheduled for 9 this evening. Though the Times report mentions a number of issues, including preemption and federal communications law, Bill McGeveran explains that the trial court decided this on the basis of the breach of a contract to include Kucinich in the debate. Stay tuned. UPDATE: The Nevada Supreme Court has reversed, unsurprisingly. I have no quarrel with the preemption analysis. But as an occasional teacher of Contracts, and a Remedies teacher, I am not sure I agree that the contract lacked consideration. Just showing up at the debate would be consideration enough. The real answer on the contract claim is likely that the offer was rescinded before there was acceptance by performance.

"FEC Fight Rife with Symbolism"

Roll Call offers this report ($).

Mississippi State Court Judge Rules Trent Lott Replacement Election Must Take Place within 90 Days, Not in November

See here. My earlier analysis of the statute in question is here. As I understand the argument of the state, it is that because a statewide election was held earlier in 2007, the governor has the right to call the election at the next statewide election. That interpretation seems to ignore the word "shall" in "shall occur in a year...." and also does not seem to make much sense in terms of the likely intent of the statute---to provide for a consolidated election in the interest of economy.

"A Supreme Court Reversal: Abandoning the Rights of Voters"

Adam Cohen has written this Editorial Observer column in the NY Times on the Crawford voter id case.

"'Millionaire' case: new look at campaign finance "

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

Bob Bauer on the Millionaire's Amendment Case

See here.

Hayward and Becker Debate Crawford Case at Federalist Society Website

See here.

"Governor Signs Popular N.J. Vote Measure"

AP offers this report. New Jersey now joins Maryland in approving the National Popular Vote plan.

"Indulgence for the Fraud Squad"

The Boston Globe offers this editorial. See also Eliza Newlin Carney's latest rules of the game column [corrected link] and this letter to the editor in the Indianapolis Star.

"Mail-in Voters Become the Latest Prize"

The NY Times offers this report.

"The FEC is MIA"

The LA Times has published this editorial on the FEC shutdown/von Spakovsky controversy.

More Opeds on the Crawford case

Sylvia Smith

Greg Palast

Dan Carpenter

Cynthia Tucker

Todd Rokita

Tony Mauro Interviews Paul Smith About His Oral Argument in Crawford

It is here in Legal Times. Mauro also talks to Smith's partner, Don Verrilli.

"Obama Questions Nevada Caucus Lawsuit"

See this post on the NY Times political blog, The Caucus. You can find the complaint posted here.

I haven't looked at this in any detail, but it seems to me that a lawsuit filed challenging the voting structure of the Nevada caucus, filed a little more than a week before the caucus, should be barred by laches, at least as to this election. I know of no reason why this suit could not have been brought months ago, or before.

"Supreme Court to Review Millionaire's Amendment"

The Washington Post offers this report. See also this press release from the Center for Competitive Politics and this post at Concurring Opinions.

Breaking News: Supreme Court Agrees to Hear Campaign Finance Case This Term

In a just released order, the Supreme Court has agreed to hear Davis v. FEC, involving a challenge to the constitutionality of the Millionaire's Provision of BCRA. I had predicted that the Court would hear the case. Under the briefing schedule, this is on track for a decision by June, and it could affect Senate and congressional races in the fall.

Here is what I wrote back on November 9, when I called this a petition to watch:

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.

Tova Wang Responds to Thor Hearne's USA Today OpEd on Crawford

See here. See also Garrett Epps' article in The Nation. Meanwhile, newspapers continue to editorialize on the case, with opinions ranging from the view that the law is hardly onerous to the view that it is a modern day poll tax.

"High Court May Get New Chance in '08 to Review FEC Rules on Political Messages"

BNA offers this report ($), which begins: "The Supreme Court may get another chance soon to answer constitutional questions about the regulation of political messages aired during an election campaign, a lawyer for a conservative group challenging Federal Election Commission rules said Jan. 10. Attorney James Bopp indicated after a hearing by a lower court in Washington, D.C., that another appeal to the Supreme Court could be in the cards. The court hearing occurred in the latest challenge to FEC rules, brought by the conservative organization Citizens United, which is spearheaded by Bopp, a longtime critic of campaign finance regulations (Citizens United v. FEC, D. D.C., No. 07-2240, hearing 1/10/08)."

Another snippet: "Asked at one point by [Judge] Randolph what issue was being discussed in the film, Bopp responded: 'That Hillary Clinton is a European Socialist.' He added that this had 'nothing to do' with whether or not a viewer should vote for Clinton for president because the film does not call for a vote."

"Minority-Language Election Rules and the Public Lawyer"

Bruce Adelson has written this article on section 203 of the Voting Rights Act for the ABA Journal (reprinted with permission).

Report on Oral Argument in Citizens United Case

Sounds like Jim Bopp had a tough time arguing against disclosure before this three-judge court.

Justice Breyer Cites "Urban Legend" of Voter Fraud at the Crawford Oral Argument; He Should Read "The Truth About Fraud"

I believe it is fair to say that that is widespread consensus, if not unanimity, among academics (even those who think Indiana's law is (or likely is) constitutional) that impersonation voter fraud is not a problem. There are voter fraud problems in U.S. election, much related to registration fraud and to absentee ballots, but NOT related to impersonation voter fraud. The most accessible debunking of all of the numerous claims about impersonation voter fraud appears in The Truth About Fraud, a very careful report written by the Brennan Center's Justin Levitt. He followed up with this exhaustive analysis of every voter fraud claim raised in any of the briefs in the Indiana voter id case.

In light of this background, a very interesting exchange occurred during the oral argument yesterday in the Indiana voter id case. Paul Smith, for the petitioners, was getting questions about the prevalence of impersonation voter fraud. He was trying to explain how ridiculous it would be for individuals hoping to commit fraud in an election to do so by means of impersonation voter fraud. (The perpetrator would have to find people willing to go into the polling booth claiming to be Jane Done (knowing that the neighbors who are poll workers might know who Jane Doe is or know that she's moved or is dead) and then pay them to vote in a certain way in a transaction that cannot be verified. And the perpetrator would have to do this on a large enough scale to affect the outcome of the election.)

According to the transcript, at page 22, Justice Breyer interrupted Smith's explanation of this point to say the following:

JUSTICE BREYER: You don't really -- I mean, that's what I wonder if there is no such evidence. How could you get evidence? It used to be common maybe urban legends, but of political bosses voting whole graveyards of dead people. All right. Now, that would be almost impossible to catch, I think. Someone walks in, saying: I'm Joe Smith. He doesn't say: I'm Joe Smith dead. He says, I'm Joe Smith, and he signs something. And the poll worker looks at it and the signature looks very weird. Well, what's the poll worker supposed to do? He's not going to go disrupt the election. And is there going to be a policeman there to follow this person home? Of course not. So that's their claim. Their claim is that we have a lot of anecdotes and there is a certain kind of fraud that you really just can't catch at the poll.

As Marty Lederman noted yesterday on the Election Law listserv

This was, to my mind, the most exasperating part of the argument. Can Justice Breyer, or any other Justice, truly believe that a party boss could, without detection, pull off a conspiracy of hundreds of people to "vote whole graveyards of dead people"? And that such schemes have regularly been accomplished without anyone breathing a word of them down through the years? "Almost impossible to catch"?! Compared to what? This is, indeed, urban legend, and it's disheartening that there do not appear to be five Justices who see just how ridiculous this scenario truly is.

I'd add that even accepting he attenuated nature of the state's interest in stopping this type of voter fraud, there's simply no reason to impose additional barriers to voting unrelated to this interest. As I've argued in my amicus brief, the state has put forward no reason to require indigent voters to make two trips to two different locations (one of which could be at least 17 miles away by public transportation according to oral argument) in order to cast a vote that would count. It is as if the state put polling places in poor neighboorhoods 17 miles away, but in other neighborhoods the polls were easier to get to. The solution is not to allow indigent voters to bring as applied challenges. As I argued yesterday, this will greatly increase the amount of election law litigation, make it come at the worst time in the courts, and undermine voter confidence in both the judiciary and the election process. The solution, instead, is to strike down the Indiana law, pointing out the parts of the law (such as the second trip requirement) that would need to be changed for a voter identification law to be upheld as constitutional.

New Study Finds Only 1.2% of Voters in Three States Lack Voter ID

The Center for Democracy and Election Management at AU (which has been headed by Bob Pastor, who was the driving force behind the Carter-Baker commission which recommended the use of voter identification at the polls) has issued a press release, "New Survey Suggests that Voter IDs Are Not the Problem," about this report it has now issued based on telephone surveys of registered voters in Indiana, Maryland, and Mississippi.

The findings are at odds with the Barreto et al paper, which found a much higher number of voters without identification. Surely the new paper, like the Jeff Milyo paper will be seized upon by supporters of the voter id law as proof that the law is constitutional, just as opponents of the law have relied heavily upon the Barreto study. As I've noted, however, none of these papers have yet appeared in a peer-reviewed journal, and there is a great deal of controversy over the methodology used in these studies. One obvious potential problem with the CDEM study is that a telephone survey of voters will tend to oversample those who can afford telephones and who are home to answer calls rather than working at the time that the calls are made.
UPDATE: Michael McDonald writes:

Let me re-state my call for putting a properly worded question about photo identification on the 2010 Census. That should put all these conflicting studies to rest, and the number should be informative for other national security-related policymaking.

Yes, the percentages reported in the survey are small, but they are being applied to a large population. I find that the 2.5 million eligible voters that would be excluded from participating in elections (if the 1.2% number is extrapolated nationwide to my 2006 eligible population estimate) is not a number that merits the description of "only" and would "not be a problem." The confidence interval on the survey is +/-4.5%, so we cannot reject with a reasonable standard of scientific doubt that that true population (of phone respondents) is really 5.7% or 11.8 million people (again, applied to the entire country).

More Crawford Oral Argument Analyses: UPDATED

NPR; Mike Pitts; NY Times; Washington Post; USA Today; LA Times; Dahlia Lithwick (Slate); Wall Street Journal; Legal Times; Bob Bauer; Orin Kerr (and here).

The Indiana Voter ID Case: Bush v. Gore All Over Again?

I have now had a chance to review the transcript in Crawford, the Voter ID case argued in the Supreme Court today, as well as a number of reports from oral argument. We are likely looking at another conservative-liberal split on the Court, with Justice Kennedy again holding the balance of power on the question. From his brief remarks at oral argument, my best guess is that Justice Kennedy will join with the more conservative wing of the Court in upholding the law, though I imagine he will write an opinion leaving open the possibility, and even stressing the likelihood of success, of narrow, as-applied challenges to the law based upon a showing that the law is likely going to be onerous to a particular group of voters. The most vulnerable provision of Indiana law in this regard is the requirement that indigent voters without identification make a second trip to the county seat to file a second affidavit for their provisional ballot to count.

This approach may have appeared desirable at oral argument, but upon closer examination, it raises a number of legal issues---issues that could cause Justice Kennedy to rethink the "as applied" approach. First, as Chris Elmendorf has suggested, the as applied approach is likely to lead to a great increase in the amount of litigation over nuts and bolts election law disputes. Paul Smith made this point in his rebuttal at oral argument as well (page 65 of the transcript ["The whole thing would be a complete and utter morass."].). My view is that the Court does not want to encourage more election law litigation, but the as applied approach would do exactly that.

More importantly, the rule would create more litigation at exactly the wrong time, just before or just after an election. I have written extensively about the dangers of post-election litigation, which can cause the public to lose confidence in both the fairness of the election process and the fairness of the courts (which, as I've noted, have divided along party lines in considering hotly charged election issues such as voter id.) In addition, the Court in its recent Purcell v. Gonzalez case tried to discourage litigation brought just before an election, because it can create great confusion about the electoral process. (The Court has a point, but as I've argued, pre-election litigation is at least better than post-election litigation when there is a choice between the two, for purposes of public confidence.) A rule encouraging pre-election challenges to the nuts-and-bolts of elections just before election time is likely to push courts even further into the political thicket.

Finally, if the Court punts in the Indiana case, putting the issue off to a future as applied case, it is not going to give the very needed guidance on how to resolve the difficult balancing in these cases. The operative Burdick standard has been applied inconsistently by lower courts, and the lack of clarity will lead to disparate decisions in different cases, which will in turn lead to charges (often unfair) that judges are deciding these issues on the basis of political considerations rather than the law. For this reason, the main legal argument in my amicus brief concerns how to refine the Burdick standard to get more consistent results in the courts below.

If Justice Kennedy is indeed troubled by certain aspects of the Indiana law (such as the two-trip requirement for indigent voters), the best result from the point of view of discouraging election litigation is to strike down the law, pointing out the flaws with the law, and telling the Indiana legislature to pass a revised law without the objectionable portions. This is what happened, to some extent, with the Georgia voter id law. A court struck it down, pointing to its most vulnerable sections, and the Georgia legislature rewrote the law, making it somewhat less severe.

Some have called this case Bush v. Gore II because of the possible 5-4 split on the Court, with a 5 justice majority seen issuing an opinion that helps Republicans and harms Democrats. I see a different parallel: Just as Bush v. Gore has spawned a great deal of election law litigation (statistics in my earlier cited articles), Crawford too has that potential. It is not a result that would be good for the country.

Oral Argument Transcript in Crawford Now Available

See here.

Still More on Crawford Oral Argument

Chris Elmendorf sent the following thoughts to the Election Law listserv, and he's given me permission to reprint his very important comments here:

I too attended oral argument this morning. Two aspects of the dialogue were striking. First, Paul Smith told the Justices that the Burdick standard requires them to make careful judgments about the reasonableness of the law, and no Justice seriously challenged him on this. Justice Alito did express some discomfort with the line drawing task, and Justice Souter at one point gestured toward the idea of a quantitative standard (based on the total number of voters adversely affected), but there was no discussion of (1) whether heightened scrutiny applies only if the burden is “severe” (a question that has divided the lower courts); and/or (2) how to conceptualize burden severity in cases about administrative barriers to voting. If the constitutional test is whether the law is all-things-considered reasonable (without a strong presumption one way or the other, as under the traditional rational basis and strict scrutiny tests), I don't think anyone should be surprised if the partisan divide in the legislative arena is replicated on the Court.

I was also struck by the response to Paul Clement's argument for rejecting the facial-challenge model in favor of as-applied claims by particular voters or classes of voters for whom compliance with the ID requirement poses a significant hardship. The conservatives welcomed this approach. Souter and Ginsburg worried that it would prevent pre-election litigation, but Clement answered that pre-implementation as-applied challenges would be fine. Paul Smith said it would be messy, with different classes of voters each seeking narrow remedies or exemptions from the ID requirement. No Justice seemed bothered by that. Completely unaddressed, however, were the implications of the as-applied model for other voter-participation claims. Perhaps I am mistaken about this, but the apparent premise of the as-applied model--that a voting requirement is presumptively unconstitutional vis-a--vis any voter for whom the requirement, in conjunction with the voter’s life circumstances, results in a "cost of voting" for that voter well in excess of the cost of voting faced by average voters--would seem a recipe for radically expanded judicial intervention in the nuts and bolts of election administration. The voter ID issue is an easy one for the as-applied model, because of the existence of a simple remedy (an injunction ordering that provisional ballots be counted). But what about challenges to in-person voting requirements by people who work long hours or have extraordinary child care responsibilities; or to ballots printed in English by members of a tiny language minority group (not protected under the VRA); or to precinct-voting requirements by voters who face unusually long lines? (For more on this question, see my recently posted and very preliminary draft, "Undue Burdens on Voter Participation (Is the Right to Vote Like the Right to an Abortion?)," available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1080256.)

Justin Levitt also had some pre-argument commentary here and here.

More Reports on Oral Argument in Crawford

Don't miss Ned Foley's recap. See also

LA Times

Washington Post

Allison Hayward

Lyle Denniston's updated post.

Dan Tokaji prepared this pre-argument podcast.

We are still waiting for the transcript to be released.

"FEC Reduced to Offering Advice; Without a Quorum, Rulings on Campaigns Are Nonbinding"

The Washington Post offers this report.

"Court Hears Indiana Voter ID Case"

AP offers this first report from oral argument. The key passages: "'You want us to invalidate the statute because of minimal inconvenience?' Justice Anthony Kennedy said near the end of an hour-long argument. Kennedy, often a key vote, appeared more willing than some to consider changes to the law."

"Justice Samuel Alito, who appeared more sympathetic to Indiana's case [than Justice Souter], posed the question that troubled several justices. With little evidence of fraud or of voters who have been kept from voting, Alito said, 'The problem I have is, where do you draw the line? There is nothing to quantify the extent of the problem or the extent of the burden.'"

Lyle Denniston has now posted The Partisan Elephant Unnoticed in the Room at SCOTUSblog. He writes: "In a notable way, therefore, it appeared that -- once more-- Justice Anthony M. Kennedy may hold the vote that controls the outcome. He displayed some skepticism about the challenge to Indiana's law, somewhat impatiently suggesting at one point that the challengers would oppose any kind of voter ID requirement other than a simple signature match at the polling place. Kennedy seemed ultimately to be looking for ways to assure voters who demonstrably would be significantly burdened by the law they they could challenge it, perhaps even before election day came around."

"Supreme Court Weighs Voter ID Requirements"

NPR offers this argument preview.

"Prisons Warp the Vote"

Brett Blank has written this commentary at TomPaine.com.

AEI-Brookings Preview of Crawford Case

A transcript is available here.

"We're all paying and paying for Florida's 2000 election meltdown - Kevin O'Brien"

See this Cleveland Plain Dealer column.

Crawford News and Commentary

News: Chicago Tribune; Christian Science Monitor; Bashman links here and here; ScotusWiki. And don't miss this story, which begins: "On the eve of a hearing before the U.S. Supreme Court, the Indiana Voter ID law has become a story with a twist: One of the individuals used by opponents to the law as an example of how the law hurts older Hoosiers is registered to vote in two states."

Commentaries: NY Times; Walter Dellinger; John Fund; Bob Bauer.

This forum on the case, sponsored by ACS and taking place in Indianapolis on January 17, looks well worth attending if you are in the area.

I will have more analysis later today after the Supreme Court releases the transcript of oral argument.

Indiana Secretary of State Todd Rokita and I Debate the Crawford Voter ID Case, Being Heard by the Supreme Court Tomorrow

You can hear the discussion on PRI's "To the Point" at this link. The discussion begins 7 minutes into the program. The host, Warren Olney, really pressed Secretary Rokita on the evidence of voter fraud to support a voter id law in a way that I have not heard before. I found the Secretary's repsonses to these arguments pretty astounding and worthy of further attention by journalists (but I am on record having a strong opinion in this case.)

The second part of the show (without Rokita, but with me, Ion Sancho, election administrator of Leon County, Florida, and Clive Thompson, who wrote this lead story on electronic voting in the New York Times magazine) discusses electronic voting and election administration since the 2000 Florida debacle.

"Dispute Over FEC Nominations Stalls Enforcement of Bundling Law"

CQ Politics has this report.

"The Amicus Briefs in the Indiana Voter Identification Case: I read... so you don't have to"

Mike Pitts has this post at Election Law @ Moritz.

More Crawford (Voter ID) News Stories and Commentary

News stories: McClatchy; Bloomberg.

Editorials and commentaries: Marie Cocco; USA Today, with a response by Thor Hearne (yes, that Thor Hearne); Los Angeles Times; Bob Bauer.

I am scheduled to appear on PRI"s To the Point later today to talk about the voter id case. [Disclosure: I filed this amicus brief supporting petitioners in the case.]

"The 'pocket veto' peril"

Robert Spitzer has written this interesting oped for the LA Times.

Supreme Court Denies Cert in Flint case

As predicted, the Supreme Court has declined to hear a challenge to this 9th Circuit ruling holding that universities may impose spending limits on student elections.

On Friday I discussed some other cases that Court is more likely to take in coming months.

"Can You Count on Voting Machines?"

This is the lead story in the Sunday New York Times Magazine. See also this oped by William Poundstone.

Articles and Commentaries on the Crawford Case

See the latest news stories in the New York Times; USA Today; The New Yorker; Wall Street Journal; (more to come). UPDATE: Los Angeles Times; Indianapolis Star; NPR (more to come promised from NPR).

Doug Chapin and Ray Martinez have written this Washington Times oped.

Rodger Citron has written this commentary for Legal Times.

"The State of Democracy After Disaster: How to Maintain the Right to Vote for Displaced Citizens"

Maya Roy has written this student note for the Southern California Interdisciplinary Law Journal. I read this article in draft and learned a great deal from it.

"Getting it Straight for 2008: What We Know About Vote by Mail Elections, and How to Conduct Them Well"

Common Cause has issued this report.

The State of the Supreme Court's Election Law Docket

The Supreme Court returns from its winter break next week, and on Wednesday, January 9, the Court will hear argument in Crawford, the Indiana voter identification case. (Paul Smith will argue for the petitioners, Thomas Fisher of the Indiana AG's office and U.S. Solicitor General Paul Clement (as amicus) will argue for the respondents). Now seems like a good time to take stock of the Supreme Court's election law docket this term. This term could turn out to be a very important one for election law.

I. The Cases Already Heard

The Court has already heard two election cases this term, Washington v. Republican Party (argued on the first day of the term) and NY Board of Elections v. Lopez-Torres (argued on the third day of the term). I must say that given the reports from oral arguments I am surprised that the Court has not already issued opinions in this case, with a majority affirming the Ninth Circuit in the Washington case and reversing the Second Circuit in Lopez-Torres. One possibility is that the cases are being held pending the oral argument in Crawford, because all three cases---to one degree or another--raise the question of the level of scrutiny to be applied in election law cases (the so-called "Burdick sliding scale" standard). Or it might just be that the one or more of the Justices needed more time to work on an opinion and the opinions will issue soon after the Court returns to session. Unless we see a reversal in the Washington case, I don't expect these cases to be of major importance for the field of election law.

II. The Upcoming Cases

Crawford certainly has the potential to be a major election law case. I have blogged extensively about the case, written an amicus brief supporting petitioners in the case, and devoted Part III of a recent law review article to the case. So I won't say much more here until after oral argument. I won't be attending the argument (I teach two classes that day), but hope to blog when the transcript is released later on January 9. The key is to listen to the questions and comments of Justice Kennedy, who could well be the deciding vote in this case. For more information on the case, see Ned Foley's case preview for the Election Law Journal. To see the 41 briefs in the case and more, check out this page from the Brennan Center.

The question presented in Riley v. Kennedy (not yet set for oral argument) is "Whether states subject to Voting Rights Act pre-clearance requirements must receive Justice Department approval before implementing decisions of its highest court striking down previously pre-cleared state laws." I haven't been following this case closely at all, but hope to get up to speed in the coming months.

III. Cases Likely to Be Heard by the Supreme Court

Next Friday, the Court is scheduled to consider the petition in Davis v. Federal Election Commission, raising the constitutionality of the so-called "Millionaire's provision" of the McCain-Feingold law (BCRA). I've analyzed the case and think it is likely the Court will set this case for full argument, rather than summarily dispose of it. Given the upcoming election, the Court, if it agrees to hear the case, could expedite its consideration to get an opinion this term.

We are still waiting for a three-judge court to issue an opinion in the NAMUDNO case concerning the constitutionality of the renewed provisions of the Voting Rights Act. It seems very likely that the three-judge court, perhaps unanimously, will vote to uphold the provisions against constitutional challenge. Regardless of what happens in the lower court, I expect the Supreme Court will be asked, and will agree, to consider the case on appeal. Depending upon the timing of the lower court opinion, that may not happen until next term. When the Court does decide the case, it could be the most important election law case of the decade.

IV. Putting the Supreme Court's Election Law Docket in Perspective

In my book, The Supreme Court and Election Law, I noted that the Court decided an average of about 10 cases per decade with a written opinion in the 1900-1960 period, and about 60 cases per decade in the 1961-2000 period. Looking at the current decade, the Court has decided 18 cases from 2001-2006, with at least 4 more expected from the October 2007 term (and of course more from the 08, 09, and 10 terms). As a matter of quantity, the Court perhaps is slowing down. But as a matter of importance, the Court continues to decide important, sometimes blockbuster election law cases in the areas of campaign finance (McConnell, WRTL), voting rights (LULAC, Georgia v. Ashcroft), and election administration (Purcell, and the upcoming Crawford case). The Court remains well ensconced this decade in the political thicket.

"How Much Will The FEC Shutdown Affect The '08 Election?"

This post appears at TPMmuckraker. Also, Gerry Hebert of the Campaign Legal Center has released this statement:

Today, the Campaign Legal Center calls on President Bush to withdraw the nomination of Hans von Spakovsky to the FEC. Though his recess appointment expired, von Spakovsky's nomination remains pending and the FEC is down to two commissioners. It is now time for President Bush to decide if he wants the FEC to function at all.

We call on President Bush to do this because it was his decision to nominate von Spakovsky in the first place. Given his record of suppressing minority voting rights and partisan misdeeds at the Justice Department, von Spakovsky should never have been rewarded with a recess appointment by the Bush Administration, let alone a formal confirmation by the Senate.

But President Bush is not alone in creating the stalemate that has left the FEC with only two commissioners (out of six). Senate Minority Leader Mitch McConnell's decision not to allow a simple up-or-down vote in the Senate on von Spakovsky helped cement the current deadlock. Rather than face defeat in the Senate on the von Spakovsky nomination, McConnell chose to torpedo two other FEC nominees who suffered from none of the infirmities that plagued von Spakovsky.

One press report from yesterday showed that even von Spakovsky knows his confirmation is not going to happen. In an e-mail reportedly sent New Year's Eve, the day his recess appointment expired, von Spakovsky told supporters that his time at the FEC had come to an end and that even he now understands that he is not confirmable. President Bush should immediately withdraw von Spakovsky's nomination and submit a new consensus nominee to the Senate for prompt confirmation.

Regrettably, outright contempt for our nation's campaign finance laws has not blocked FEC nominations before -- or Brad Smith and a few other notables would never have served on the FEC. But von Spakovsky's partisan misuse of the Justice Department to undermine minority voting rights went so far beyond the pale that his confirmation was doomed from the outset.

Too often the FEC is hamstrung by the partisan make-up of the Commission, but even a weak enforcement entity is far better than no enforcement entity at all. The current impasse must be resolved, especially given the fact that it is an election year. At this juncture, the ball is in President Bush's court.

The Campaign Legal Center urges the President to withdraw the von Spakovsky nomination and allow the confirmation process for qualified FEC nominees to move forward.

Elmendorf on the Crawford Case

Chris Elmendorf has posted Undue Burdens on Voter Participation (Is the Right to Vote Like the Right to an Abortion?) on SSRN (forthcoming, Hastings Constitutional Law Quarterly). Here is the abstract:

During October Term 2007, the Supreme Court will hear its first case in more than thirty years in which the plaintiffs maintain that the state has unconstitutionally hindered eligible voters' access to the polls. The case, Crawford v. Marion County Election Board, presents a facial challenge to Indiana's recently enacted photo ID requirement for voting. Relying in part on the Court's recent abortion jurisprudence, the U.S. Solicitor General has filed an amicus brief arguing that the Court should reject the Crawford plaintiffs' facial claim while inviting future as-applied challenges by individual voters or precisely defined classes of voters for whom the ID requirement may operate as a severe impediment to voting. This essay argues the SG's abortion/as-applied model for voter participation claims is a Siren's song: enormously appealing and, if followed, sure to lead the federal courts to a place they will no doubt regret: mired in a bog of politically fraught questions about the details of the voting process, and bereft of manageable rules for decision. The best hope for avoiding the bog, I argue, is to treat the right to vote as a right whose doctrinal content derives from the citizenry's collective interest in being governed by representatives who are accountable to the people, pursuant to Article I and the Seventeenth Amendment. But this will require abandoning the nominal status of the right to vote as right that is merely or primarily individual and personal in nature.

Chris filed this amicus brief in the Crawford case. On page 40 of his draft, he writes: "Like the Court, I am of two minds about this standard, but increasingly I think the position I took as an amicus was incorrect, and that the Court should hold that the default standard of review is plain vanilla rational basis (unless, per the above, there is a practicable way of tying judicial reasonableness determinations to the collective judgment of another entity, such as a Foleyeque shadow court). I make this suggestion not because I believe it the fairest reading of the relevant precedents, or because it is the best standard for an ideally impartial judge to apply, but on account of the apparent pattern of judicial partisanship in voter participation cases."

I look forward to reading this draft soon.

"The Role of Challengers in Elections"

Project Vote has posted this issue brief.

"New Population Estimates Continue Trend for Congressional Apportionment, But Point to Change in 2010"

Election Data Services has issued this press release.

Video of ACS Briefing on Crawford Voter ID Case Now Available

See here.

"Electing to Litigate"

ABA Journal offers this extensive report.

"State puts Inkavote system on notice"

The LA Daily News offers this report. See also this LA Times report.

"Ohio to Offer Paper Ballots"

The Cincinnati Enquirer offers this report.

Frank Askin on New Jersey "Party Democracy Act"

This commentary appeared in the New Jersey Law Journal.

Election Law Blog Post # 10,000

It is hard to believe that I have posted 10,000 entries to the Election Law Blog. (Actually, though this post is numbered 10,000, this is not a wholly accurate number. The first post to the blog at its current address, appearing Sept. 29, 2003, was numbered 9, not 1; I had a few hundred posts, beginning with this February 18, 2003 post about the district court not issuing an opinion in the McConnell case, at my old blogspot address; and I have had a number of guest bloggers.)

Still, it is something of a milestone worth marking. I want to thank my many readers for their suggestions, criticisms, links, and words of encouragement. I am always looking for ways to improve the blog, so keep on sending in those comments. Thanks for the support.

"Director's Note: Election 2008 - Ready, Steady, GO!"

Doug Chapin has written this post in this week's Electionline newsletter.

Election Law Journal Moves to Electronic Submission of Manuscripts

You can find the details here.

Will The FEC Be Allowed to Appeal Adverse Rulings without a Quorum of Commissioners?

The answer may be "no," according to this BNA report ($).

"NJ Nears Undermining Electoral College"

AP offers this report. See also this piece on the National Popular Vote in the magazine In These Times.

"White House says it has not withdrawn von Spakovsky's nomination for FEC"

See this post at one of the Politico's blogs.

"U.S. Supreme Court Case on Merits of Photo ID Law Is Previewed in Election Law Journal"

The Election Law Journal has issued this press release about its release of the uncorrected page proofs of this must-read case preview of the Crawford Indiana voter id case written by Ned Foley. Information on subscribing to ELJ is here.

The Iowa College Vote and Democratic Values

We've all seen the cry of "voter fraud" being used for political purposes in recent years, but this latest example would be amusing if it weren't so pernicious: David Yepsen, a leading political reporter for The Des Moines Register, has suggested that Senator Obama's encouragement of college students to vote in the Iowa caucuses amounts to "fraud." President Bill Clinton too has gotten in on the action. Recognizing that such voting could well help Obama who has energized students on college campuses, beat his wife, Sen. Hillary Clinton, Bill Clinton has discouraged such voting, telling college students to use their consciences in deciding whether or not to participate in the caucuses. But the bottom line is that voting by Iowa college students is perfectly legal, and indeed such voting could help to compensate for the otherwise anti-democratic nature of Iowa's role in the presidential election process.

Let's start with the law. Iowa residents can participate in the presidential caucuses, and the Iowa Code specifically provides that a "student who resides at or near the school the student attends, but who is also able to claim a residence at another location under the provisions of this section, may choose either location as the student's residence for voter registration and voting purposes." The state Democratic Party agrees that "[a]ny student who attends an Iowa college or university may participate in the Iowa caucuses provided they are 18 by November 4, 2008, and are a registered Democrat in the precinct in which they wish to caucus." Indeed, before raising his charge of fraud, Yepsen conceded in his column that voting by college students is "quite legal."

So what is this really about? Apparently Yepsen is upset that out-of-staters--particularly college students from Illinois, whom Yepsen says are used to voter fraud--are going to "skew" the results of the races. This kind of charge is hardly new. Indeed, back in 1965, the Supreme Court considered Carrington v. Rash, a case in which Texas sought to exclude state residents on military bases from voting in elections. Texas argued it had "a legitimate interest in immunizing its elections from the concentrated balloting of military personnel, whose collective voice may overwhelm a small local civilian community" The high Court, while recognizing the state's right to limit voting to bona fide residents, unanimously rejected the argument: "Fencing out from the franchise a sector of the population because of the way they may vote is constitutionally impermissible."

So much for Yepsen's implicit argument that resident Iowa college students are not "real Iowans" who should not be permitted to skew the results of the election. Yepsen also seems to idealize the Iowa caucuses, but the caucuses are not the paragons of democracy they are cracked up to be. They are likely to have very low voter turnout and operate with some quirky rules, including no right to a secret ballot (in the Democratic caucuses), unequal weighting of votes, and lack of transparency in the process.

Finally, there's reason we as a nation should actually be happy that candidates like Obama encourage Iowa college students to vote in the caucuses. Iowa and New Hampshire have inordinate influence over the choice of the president. Neither Iowa nor New Hampshire are representative of the interests of the country as a whole. Allowing Iowa and New Hampshire to go first already has a great "skew" on the presidential process, creating (or ending) momentum of presidential candidates. College students, who come to Iowa from across the U.S. and are likely to be more diverse (in numerous ways) compared to other Iowa residents can serve as a partial antidote to this skew.

Yepsen concludes his piece by stating that "If Iowa can't get this right, then Iowa shouldn't get this sort of influence." Indeed.

"Lott Successor Dispute Heads to Court"

AP offers this report.

"Hastert, the Untold Story"

This post at one of the Washington Post's political blogs begins: "As if the Mark Foley page scandal hadn't done enough damage to Republicans. Now we discover that legal bills arising from the tawdry affair landed former Speaker Dennis Hastert in hot water with the Federal Election Commission before he left town."

"Von Spakovsky says good-bye to that job at the FEC"

See this post at one of the Atlanta Journal Constitution's blogs. See also this BNA report ($) on the FEC shutdown and this Democracy 21 press release.

New Jersey Poised to Make Its Chief Elections Officer, More, Not Less, Partisan

This is troubling, and exactly the opposite of what I have long advocated.

More on Wilkinson Opinion in Virginia Open Primary Case

Following up on this post, see Bob Bauer and Rick Pildes.

Ken Blackwell on Crawford, the Indiana Voter ID Case, and a Brennan Center Response to Fraud Allegations

The former controversial Ohio Secretary of State has penned this oped in the NY Sun. Among the statements made by Sec. Blackwell: "Briefs in the case show that the number of votes cast in Wisconsin in 2004 exceeded the number of registered voters by over 4,600. Since you can't have more votes than you have voters, there was clearly fraud going on there." I'd suggest that Mr. Blackwell read this new 75 page release from the Brennan Center, which analyzes every instance of fraud alleged in the Crawford briefs supporting the state. Concludes the Brennan Center:

In briefing filed with the Supreme Court in the Crawford v. Marion County Election Board case, the State of Indiana and several of its allied amici again fail to justify Indiana's photo ID law. They recite various examples of problems that the challenged law would not solve. They fail, however, to provide any evidence that in-person impersonation fraud--the only misconduct that photo ID rules could possibly prevent -- is a problem, let alone one justifying the burdens of a restrictive photo ID rule.

In these submissions, it is easy to get distracted by noise. The briefs--submitted by the State of Indiana, the U.S. Department of Justice, the Attorney Generals of nine states, a national political party, members of Congress, various election officials, and several nonprofit organizations -- contain more than 250 citations to reports of election problems.

But not one of the sources cited shows proof of a vote that Indiana's law could prevent. That is, not one of the citations offered by Indiana or its allies refers to a proven example of a single vote cast at the polls in someone else's name that could be stopped by a pollsite photo ID rule.

Even including suspected but unproven reports of fraud, the State and its allies have uncovered remarkably little evidence of any misconduct that Indiana's law could prevent. Out of almost 400 million votes cast in general elections alone since 2000, the briefs cite one attempt at impersonation that was thwarted without a photo ID requirement, and nine unresolved cases where impersonation fraud at the polls was suspected but not proven. Nine possible examples out of hundreds of millions -- and these nine cases might just as well have been due to clerical error. Not one of these cited reports occurred in Indiana.

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

"What Older Adults Can Teach Us About Designing Better Ballots"

Via Election Updates comes a link to this article in the journal Ergonomics in Design.

"Eager to vote but stuck in citizenship process"

The LA Times offers this report.

Judge Wilkinson Writes Extremely Important Dissent from Denial of Rehearing En Banc in Virginia Open Primary Case

Howard Bashman called to my attention this opinion by Fourth Circuit judge James Harvie Wilkinson III dissenting from rehearing en banc in Miller v. Cunningham, concerning some aspects of Virginia's laws governing nomination of candidates in partisan elections. Judge Wilkinson's opinion is important for three separate reasons, and it could in fact attract the attention of the Supreme Court should a petition for cert be filed.

First, Judge Wilkinson lays out his views on how judges should decide election law cases, including a plea against "judicial minimalism" in the context of election law cases.

Second, drawing upon the work of Ely, Pildes, and others, Judge Wilkinson sets out his views on how courts should deal with election laws that benefit, or appear to benefit, incumbents.

Third, Judge Wilkinson expresses the view that states should be free to require political parties to use open primaries for the selection of party nominees, an issue that has not been ultimately resolved, but has been called into question by cases such as the Supreme Court's California Democratic Party v. Jones case.

I agree with much, but not all, of what Judge Wilkinson has to say. (My own views on these subjects are set forth in detail here.) But whether you agree or not, this 22-page pdf is well worth reading.

"Caucuses Give Iowa Influence, but Many Iowans Are Left Out"

The NY Times offers this report. See also this Jeff Greenfield column for Slate.

Catching Up

Here are some interesting articles, posts, and links that appeared since I took my blogging break.

Voter ID: AP offers Voter ID Law Heads to Court. A snippet: "Even without an ID, indigent people can cast provisional ballots, then show up within 10 days at county offices and sign a form attesting to their vote. But the Marion County Election Board, which includes Indianapolis, said just two of 34 voters who cast provisional ballots because they lacked voter ID showed up at county offices to validate their vote in the 2007 municipal election. Their signatures all matched those on file, but could not be counted because of the photo ID requirement." Jonathan Bechlte has written Preserving Ballot Integrity, a Washington Times oped. Another pro-id oped, this one by C.B. Upton, is here. Cornell's Legal Information Institute offers this preview of the Crawford voter id case to be heard next week in the Supreme Court. And Ned Foley has written an excellent preview of Crawford which will appear in the January issue of the Election Law Journal. A copy of the uncorrected page proofs should appear later this week. [Disclosure: I filed this amicus brief supporting petitioners in the Crawford case.].

Campaign Finance The New York Times offers a front-page report, Outside Groups Spend Heavily and Visibly to Sway '08 Races on how the Supreme Court's opinion last term in the Wisconsin Right to Life case is opening up the door for more campaign spending this election season. I predicted as much in this forthcoming Minnesota Law Review article. When I presented this paper at APSA, Bruce Cain, commenting, believed that I exaggerated the effect that WRTL is likely to have on campaign spending, particularly corporate campaign spending. As I said at the time, the disagreement is empirical, and as the data come in, we'll see whether or not spending actually picks up this season thanks to the opening created by the case.

The NY Sun offers a fascinating article, Anti-Poverty Group Refuses to Name Donors, which begins: "An anti-poverty organization that boasted of making the largest independent advertising buy of the political season, the ONE Campaign, has not filed a public list of its donors despite what some campaign finance lawyers say is a legal requirement to do so. 'This organization is running a serious risk by ignoring the disclosure and reporting laws,' an advocate for strict enforcement of campaign finance regulations, Paul Ryan of the Campaign Legal Center, said." You can view the ad in question here.

On the FEC shutdown, see Bob Bauer and Brad Smith. Both have complimentary things to say about the outgoing FEC commissioners, but Brad also adds some more controversial comments about why the reform community opposes the von Spakovsky nomination.

A Third Party Presidential Candidacy? The NY Times offers Bloomberg Moves Closer to Running for President. The Washington Post offers Independent Group Eyes Independent Bid.

GOP Voter Caging in Kansas? See this AP report.

Election Administration and Technology. USA Today offers Legal Voters Thrown off Rolls, which begins: "Five years after passage of a federal law to create electronic registration databases to deter voter fraud, the new technology is posing hurdles that could disenfranchise thousands of legal voters, a USA TODAY examination finds." AP offers States Raise Doubts About Electroic Voting Machines. AlterNet offers Rep. Rush Holt to Push for Paper Ballots and Vote Count Audits for 2008.

Compulsory Voting A Harvard Law Review Note does a very nice job discussing the issue, something I wrote about back in 1996.