Jumping the Gun on Citizens United

I'm at a break at the Hastings conference so I only have a few minutes here to blog. Following up on this post, the Supreme Court has issued an order in the Citizens United case raising the question whether the Court has jurisdiction to hear an appeal from what is not a final judgment. Lyle Denniston has a detailed analysis of the issue here.

Finding a lack of jurisdiction would allow the Court to dispose of the case without reaching the merits. And in any case the timing of the briefing order makes it appear quite unlikely that the case would be ordered heard this term. (The Court could have granted a hearing and postponed a ruling on jurisdiction, allowing the parties to brief this issue as part of their case).

As another knowledgeable observer expressed to me, by March Hillary Clinton may no longer be a candidate for office, which could have the effect of mooting the case.

One way or another, it appears the Court could resolve this appeal without reaching the merits.

Summary Affirmance Coming in "Citizens United" Case?

Back in January Jim Bopp filed a motion seeking to expedite consideration of the Citizens United case before the Supreme Court (see docket; for background on the case see Lyle Denniston's analysis at SCOTUSblog). The Court failed to rule on the motion at the last two conferences, and so far it appears that there have been no orders today coming from the Court's conference. What does this mean for the Citizens United case?

First, I think it is clear that the Court is not going to expedite the case for consideration this term. We are getting late in the term and the Court has had three conferences to make such a ruling. It hasn't happened and the Court is already setting cases for next term. If the Court was going to act on expedition, it would have done so already.

What I expect is most likely happening is that the Court is going to issue a summary affirmance of the order below accompanied by a dissent from Justice Thomas and perhaps one or more other Justices. I have seen this pattern before of a relisting of cases up on appeal (not cert) that ultimately led to an affirmance and dissent.

Here are the three reasons why I expect a summary affirmance in the case. (1) The issue raised in the case involves creating an exemption from McCain-Feingold's rules requiring disclosure of electioneering communications, relying on the recent WRTL case. In McConnell, 8 of the 9 Justices on the Court (Justice Thomas dissenting) voted to uphold those disclosure rules. Even with the replacement of Rehnquist and O'Connor with Roberts and Ailto, it looks like there should be at least six Justices who are comfortable with the rule requiring that those who fund tv or radio ads run close to the election featuring candidates for federal office disclose their contributions and spending. (2) The case comes up on a request for a preliminary injunction. Even if some members of the Court wanted to consider the issue after final judgment, the Court will give a lot more discretion to a lower court's decision to grant or withhold a preliminary injunction. (3) Even for Justices who believe that a "WRTL"-type exemption should apply to disclosure of the funding of ads for which there is "no reasonable interpretation" of the ads other than as an advertisement supporting or opposing a candidate for federal office, it is hard to see the ads for the anti-Clinton movie as fitting under the exemption. One of the lower court judges literally laughed when told the ad was about the issue of Clinton being a "European-style socialist" and not an ad against Clinton's election.

If there is to be a summary affirmance, I expect a dissent. The reason is that unlike denials of cert., summary affirmances have precedential value. It means the lower court got the result right (though not necessarily the reasoning).

We may know more on Monday.

"Voters Flock to the Polls, But are They Really Reversing a Trend?"

Carl Bialik has written this interesting column on voter turnout for the Wall Street Journal. Thanks to Dan Lowenstein for the pointer.

"Democrats Blaze Trails In February Fundraising"

The Washington Post offers this front-page report.

"To Some, McCain's Campaign Finance Tangle Ironic"

The Boston Globe offers this report.

And in Election Law Controversies from Ohio....

The Toledo Blade offers U.S. Judge in Toledo May Rule on 'Issue Ads' about a lawsuit brought by Sen. Gravel (is he still running?) against ALP, the pro-Clinton 527.

The Cleveland Plain Dealer offers Republicans Ohio Secretary of State Jennifer Brunner removed from elections boards cry foul.

"High Voter Turnout Prompts Resource Concerns for Nov."

USA Today offers this report.

"Mason: FEC Cannot Enforce Rule Broadly Defining 'Express Advocacy'"

BNA offers this report ($), which begins: "The Federal Election Commission cannot enforce a long-standing, controversial rule broadly defining 'express advocacy,' FEC Chairman David Mason suggested in a statement recently released by the commission. The rule--11 CFR Section 100.22(b)--says the FEC may regulate the funding of political messages based on their timing and context and may go beyond a narrow range of 'magic words' calling for a vote for or against a candidate. Mason said such broad regulation now must be considered unconstitutional in light of a Supreme Court ruling handed down last year in FEC v. Wisconsin Right to Life Inc."

"The Dog That Hasn't Barked"

Adam Bonin has this important post on the pro-Clinton 527 that has so far failed to run its ads in Ohio or Texas. Did Bob Bauer scare away all the donors?

"Clinton lawsuit could muddy Texas caucuses"

McClatchy offers this report.

Here's a Way to Undermine Confidence in the Nonpartisanship of Florida Election Administration

The most qualified of 8 candidates.

"Huckabee: Financing Could Stymie McCain"

AP offers this report. Says Gov. Huckabee: "He wrote these laws and one of the reasons I think people need to continue this discussion and this debate is I think one of the worst things that's ever happened to American politics is the McCain-Feingold campaign finance act...It has created more problems than it has solved and it may very well be that the law that he pushed comes back to bite him." I do not see how McCain-Feingold, whatever one thinks of it, is directly responsible for Sen. McCain's troubles, except that by raising the individual contribution limit from $1000 to $2000 (indexed to inflation, and currently $2300), the public financing system has become even less appealing for successful fundraisers.

More Wertheimer on McCain

A backtrack?

Linda Greenhouse's Bush v. Gore Anecdote

Linda Greenhouse is going to retire from the NYT at the end of this Supreme Court term, which I think is sad news for all of use who have relied upon her to make sense of Supreme Court cases in very diverse areas. I have had many conversations with Linda over the years about election law issues, and I've always marveled not only over how much homework she did (she seemed to master the arguments in all of the briefs---including the amicus briefs). She has an unrivaled ability to see beyond the lawyers' argument to the politics and pulse of each case.

In this article she explains how she had 10 minutes to explain Bush v. Gore to the nation. She will be missed sorely on the daily beat, but at least she's still planning on writing about the Court.

11th Circuit to Hear Argument Over Florida's Primary and Delegates

See here.

"Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements"

This draft by Steve Ansolabehere and Nate Persily has moved to the top of my "to read" pile. It deals with a very important question that I discussed in my recent Stanford Law Review article: the lack of any social science evidence supporting the assumption made by the Supreme Court in the Purcell v. Gonzalez case that perceptions of voter fraud and lack of id requirements could undermine voters' confidence in the electoral process and decrease voter turnout. Steve and Nate are among the best political scientists working in the area of election law, so I have high hopes for this piece. Here is the abstract:

In the current debate over the constitutionality of voter identification laws, both the Supreme Court and defenders of such laws have justified them, in part, as counteracting a widespread fear of voter fraud that leads citizens to disengage from the democracy. Because actual evidence of voter impersonation fraud is rare and difficult to come by if fraud is successful, reliance on public opinion as to the prevalence of fraud threatens to allow courts to evade the difficult task of balancing the actual constitutional risks involved. In this short Article we employ a unique survey to evaluate the causes and effects of public opinion regarding voter fraud. We find that perceptions of fraud have no relationship to an individual's likelihood of turning out to vote. We also find that voters who were subject to stricter identification requirements believe fraud is just as widespread as do voters subject to less restrictive identification requirements.

Isn't Michael Toner Enough?

Apparently there aren't enough defenders of Sen. McCain on the campaign finance loan questions.

"Provisional Ballots May Be the Hanging Chad of '08"

Ned Foley and Tova Wang have written this oped for The Hill.

Amicus Briefs in FEC v. Davis case

Center for Competitive Politics

James Madison Center.

"McCain in A Glass House"

George Will has this new Washington Post column. See also Bob Bauer.

"Early Obama Commitment on Money Becomes Target"

The NYT offers this report.

CLC and Democracy 21 Respond to Larry Gold

See here and here.

"Mint Rejects Voting Rights Message"

The Washington Post offers this report.

"Lawmakers Question Election Board Members"

CQ Politics offers this report, which begins: "Members of the Election Assistance Committee again faced hard questions Wednesday from lawmakers concerned they were not doing enough to solve recurring voting problems."

"Editorial: A case not made"

The Milwaukee Journal Sentinel offers this editorial about this report I linked to recently. It begins: "A Milwaukee police investigation of a badly managed general election in 2004 describes a litany of, well, bad management."

"GOP voters claim pressure by officials"

See this news from Galveston County, Texas.

"McCain's Canal Zone Birth Prompts Queries About Whether That Rules Him Out"

The NY Times offers this report.

EAC Inspector General Issues Report on EAC Operations; Brennan Center Comments

See here and here.

Statements from Robocall/Vote Caging Hearing

You can now find them linked here. Check out also the letters submitted (Panel 2) ((Panel 1)), including one on Panel 2 from Dan Lowenstein. And see this Brennan Center testimony.

"Diebold Accidentally Leaks Results Of 2008 Election Early"

The Onion strikes again (via Skeptic's Eye).

Tokaji Responds to Elmendorf's Penn Piece on Judicial Review of Electoral Mechanics

I'm printing this out to read on the plane up to the Hastings election law symposium and am anxious to read what Dan has to say.

"Handwritten primary votes won't be counted"

More evidence of jurisdictions failing to meet Heather Gerken's low bar.

"Senate passes weakened version of Hosemann's election package"

The latest from Mississippi.

"Public Citizen Comes to McCain's Defense"

The Hill offers this report.

" Mississippi Voters Threatened by Illegal Purge, if New Bill Passes Legislature"

Project Vote has issued this press release.

"Loans Could Paint McCain into Corner"

The Washington Post offers this report. See also this NYT report.

"McCain concerned about dirty campaigning from 527s"

This story appears on a FOXNews political blog.

Dean Logan Responds to Debra Bowen on LA's Bubble Trouble

See here.

"Machines get vote of no confidence after errors in primary"

See this story from NJ.com.

"Questions for the Campaign Legal Center and Democracy 21 About Senator John McCain"

Larry Gold asked me to post this document, which raises questions I've mentioned here. Larry writes: "I prepared this at my own initiative. (And, I do not represent any presidential candidate or party committee, not that it matters.)" UPDATE: Bob Bauer comments.

A Very Insightful Point on the McCain Public Financing Mess

Deep within Brad Smith's must read post on the McCain Public Financing mess is this point I had not thought of before:

This week, the truncated FEC's Chairman, David Mason, sent the McCain campaign a letter. Mason noted that the FEC would treat McCain's notification that he was "withdrawing" from the matching funds subsidy program as a request to have the Commission withdraw its previous authorizations of funding for McCain, in accordance with the afore-quoted 2 U.S.C. 437c(c). Mason also asked for verification that Senator McCain had not pledged his authorization as collateral. Sources say that McCain’s campaign lawyer, former FEC Commissioner Trevor Potter-- who has long lobbied for "strict" enforcement of the law and who presumably is the architect of McCain's campaign finance strategy-- exploded at FEC staff. If true, it once again indicates the inability of McCainiacs to understand who has their best interest at heart. Mason’s letter is carbon copied to Judith Tillman, the Treasury official who oversees payments from the matching funds account. What does this mean? I can't be sure, but I suspect it means that Treasury was about to send McCain a check that the latter didn't want. Note that once the FEC certifies a candidate for matching funds, the Treasury -- meaning Ms. Tillman's division of Treasury -- is legally obligated to cut the check. It has no power to withhold the money. And who can tell it to withhold the check? Not John McCain (though he can refuse to cash it), but only the power that authorized it, in this case the FEC. And under 437c(c), the FEC appears to need four votes to do that -- a point Chairman Mason made to Senator McCain. Sending the letter to McCain may be enough for Commissioner Tillman at Treasury to hold off on sending McCain money while waiting for the situation to straighten out. Chairman Mason may have been saving the McCain campaign's bacon, even if the latter is too arrogant and stupid to know it.

Milwaukee Police Department Issues Very Important Report on Voter Fraud and Voting Problems in 2004 Election

You can find the report here. I have only had a chance to skim it, but this looks like a very solid report that is full of facts, not rhetoric. From my skim it appears that the investigation found that most claims of double voting were the result of either clerical error or father and son having the same name, but that there was some evidence of some isolated cases of double voting and much more evidence of incompetence in running the electoral system making further investigation impossible. Given the administrative problems, the report strongly recommends against election day registration of voters, finding that many ineligible voters can be registered during the process.

I am sure that both sides in the "access" v. "integrity" debate will have much to tout and argue with in this report.

"Six Questions About Public Financing Of Presidential Campaigns"

See this item at CQ Politics.

"''Central Counting' of Paper Ballots in Ohio"

Ned Foley's latest on the March 4 primary. As (bad) luck would have it, the election in Ohio could be close.

Citizens United Appeal Decision Put Over to Feb. 29

See here. It looks like the Court may be ruling on the underlying appeal and not just the motion to expedite.

"Federal Campaign Regulations are as Clear as Fudge"

Eric Wang offers this Roll Call oped ($), which explains: "Last week, ice cream moguls Ben Cohen and Jerry Greenfield threw their support behind Obama. Adding a cherry on top of their endorsement, they (or their company) lent the campaign two 'ObamaMobiles,' which will distribute scoops of 'Cherries for Change' to Vermont voters, whose Democratic primary is March 4."

House Judiciary Subcommittee Holding Hearing today on Voter Suppression

You can find the details here. You can find Lori Minnite's testimony here and a letter from Demos here.

Senate Rules Committee to Hold Hearing on Limiting Robocalls and Voter Caging

The details should appear here soon. I received a press release with details but it is not yet on the Rules Committee web page or on Sen. Feinstein's webpage. When it is, I'll provide a link as an update to this post.

"McCain Camp Says He Can Avoid Money Caps"

AP offers this report. See also this WaPo blog entry. The Wall Street Journal offers Election Agency Lacks Quorum to Rule on Key Issues This Year. The New York Times editorializes on Money and People's Choices. MORE: here, here, and here.

"The Sham of Public Financing"

Debra Saunders has written this column.

Geraldine Ferraro on Superdelegates

See this NYT oped.

Apparently No Order Today in Citizens United Case

See here.

"Obama's Finance Ploy"

The Wall Street Journal offers this editorial, which mentions not only Sen. Obama, but also Sen. McCain and Hans von Spakovsky.

"Nader Enters in Boon to GOP"

The Politico offers this report. Richard Winger says the press coverage of the Nader announcement is of "poor quality."

"This is a Job for Superdelegates"

David Ponet and Ethan Leib have written this commentary for Legal Times.

" Precinct hiccups blamed on poor training"

AP offers this report.

" Dean says McCain skirts election law with campaign loan"

CNN offers this report. The McCain camp responds to the Dean charges.
Brad Smith weighs in.
The SF Chronicle offers McCain Dodges Bullet, Faces Fiscal Bombshell.

"Senators Diverting Campaign Funds to Kin"

The Washington Post offers this report.

"McCain says untroubled by campaign-finance letter"

Reuters offers this report. Meanwhile, AP offers Analysis: McCain Loses Leverage, which quotes this blog post.

Meanwhile some reform groups (but not the Campaign Legal Center or Democracy 21) have issued this statement about the Obama-McCain public financing dispute.

UPDATE: McCain's campaign has issued this statement:

"The Federal Election Commission (FEC) has repeatedly held that candidates who enter the Presidential Primary Matching Funds System have a right to withdraw, provided they do so before the United States Treasury pays them the funds and provided they do not use the matching fund certificates they hold as collateral for a loan. The campaign has been paid no funds by the United States Treasury and never used the certificates issued by the FEC as collateral for its bank loan. Previous candidates in this situation include Democratic National Committee Chair Howard Dean, who entered and then withdrew from the primary funding system in the 2004 election, and Congressman Dick Gephardt, whose campaign obtained an advisory opinion from the FEC in 2003 stating they could withdraw from the system and then re-apply for re-entry. The right to withdraw from the system is a constitutional right, which prevents the FEC from blocking Senator McCain's withdrawal without cause.

"Senator McCain notified the FEC and the United States Treasury of his withdrawal from the system in a letter dated February 6th. The current dispute is simply over whether the FEC has to take any action in response to the withdrawal notice. It is clear to the campaign, as it is to a number of FEC experts, that no FEC action is necessary in response to Senator McCain's notice of withdrawal given the constitutional nature of the right. In our view, the Senator's letter is all that is legally required to exit from the system. FEC Chairman Mason, who does not represent the official view of the Commission due to the current lack of a quorum, has written a letter to the campaign in which he states his belief that the FEC must formally vote to accept the withdrawal. In either case the result is the same: the campaign will be out of the public funding system either because of the letter sent on February 6th, or because of a future vote by the Commission acknowledging the letter.

"Nevertheless, the campaign is fully responding to Chairman Mason's request for information and is confident that the new commissioners, when appointed and confirmed, will take whatever action they conclude is necessary to confirm Senator McCain's withdrawal from the system as of February 6, 2008."

Have I Made a "Surprising and Elemental Mistake" About the Pro-Clinton 527?

Yesterday I noted Bob Bauer's very strong words in a memo and follow up conference call with reporters. How strong were the words? See here:

"This is not a case where there's shades of gray. This is not a case where there is room for argument. This is not a case where they will be spared by some version of Philadelphia lawyering," Obama lawyer Bob Bauer said during a conference call with reporters.

"This is absolutely a cold, calculated move to violate the law to the benefit of the candidate and to assume that any penalty will be so deferred into the future that the immediate benefits can be taken now without consequence."

"The calculation on their part is that the penalties will be bearable for them," he added. "But I think in the end, the penalties will be unbearable for them. This is going to wind up being a very, very miserable experience for the people involved. Maybe, in some cases, life changing."

The 527 has claimed it is not a political committee under FECA, and in any case under the Supreme Court's recent WRTL case, it will be entitled to an exemption. The group will not engage in express advocacy. In supporting Clinton it will focus "on issues of importance to the middle class -- the economy, jobs, education, healthcare and the mortgage crisis."

It seems to me that this is quite a plausible argument under WRTL and the follow up FEC regulations (though I am no fan of the case or the regulations) . "Tell Hillary to Keep Working" is exactly the kind of election-related speech that the Roberts Court seemed to bless with a huge exemption in WRTL. True that was an exemption from the limits on corporate and union spending on election related speech, not on political committee status. But it seems to me that the same logic applies: if you can't limit corporate and union spending on these "issue ads" unless they are demonstrably the "functional equivalent of express advocacy," you cannot limit the activity of groups engaged in "issue advocacy," such as with $5,000 contribution limits, unless they too engage in the "functional equivalent of express advocacy."

In today's post, Bob Bauer takes me to task. He says I "seem[] to believe that Wisconsin Right to Life, which put constitutional limits on corporate and union speech regulation, swept away or at least softened up the Federal Election Commission rules directed at individual activity through 527s. And he appears to suggest that I once expressed the same belief." The former is correct. Whether Bob also stated as such in his blog posts, I can't be sure. (His blog does not appear to have a search function. [UPDATE: I made a surprising and elemental mistake about the "search function." It is at the top right of Bob's blog.]

But I do know that Bob is very sympathetic to the argument that even political committees engaged in express advocacy should have a constitutional right to spend unlimited sums independent of candidates. That's at issue in the SpeechNow case currently working its way through the courts. Certainly if political committees will be able to take unlimited sums, this 527 group can as well.

I can see Bob's argument on the other side. The FEC's penalties of the 527s from the 2004 election send a message that groups with a major purpose of supporting candidates for federal office through issue ads will be treated as political committees, and until there's a constitutional ruling otherwise, the contribution limits are the law. I'm not saying Bob is wrong. But there are infinite shades of gray here, not the certainty that Bob has of a day of reckoning.

If there are other campaign finance lawyers out there who think the issue is as certain as Bob says, let me know.

"FEC Warns McCain on Campaign Spending"

The Washington Post offers this front-page report. My earlier analysis of McCain's pickle is here.

"Is postage stamp a bribe? Parties trade accusations"

The Orlando Sentinel offers this report.

Does the Reform Community Have a Double Standard?

Last week, a number of campaign finance reform groups sent this letter urging Senator Obama to keep his promise to stay in the campaign finance system. Over at TAPPED, Marc Schmitt asks: "And, speaking of reform groups, have you seen the press release from Democracy 21, the Campaign Legal Center, Common Cause, Public Citizen, the League of Women Voters and U.S. PIRG urging Senator McCain to keep his commitment to public financing and stop manipulating the matching funds system for the primaries? No? Me neither. I'm sure it's coming any. day. now."

The CLC is in a bit of a bind given that the group is closely tied to Sen. McCain. (Trevor Potter, who heads the center and is McCain's campaign finance lawyer, has taken a leave from the group during this period.) So maybe CLC shouldn't be signing any letters to presidential candidates at this point. But what about the other groups? Do they have a view on whether McCain can back out of his public financing commitment, given the loan documents?

"Clinton Donors Worried by Campaign's Spending"

The NY Times offers this report, which begins: "Nearly $100,000 went for party platters and groceries before the Iowa caucuses, even though the partying mood evaporated quickly. Rooms at the Bellagio luxury hotel in Las Vegas consumed more than $25,000; the Four Seasons, another $5,000. And top consultants collected about $5 million in January, a month of crucial expenses and tough fund-raising."

"Voting Changes May Snarl Tallies in Big Ohio County"

The Wall Street Journal offers this report.

Sen. McCain in Legal and Political Pickle Over FEC Letter

Though the New York Times story about Sen. McCain's alleged improprieties with a lobbyist is dominating today's news, another story could prove equally or more important to the success of McCain's candidacy. Today's FEC decision barring McCain, at least temporarily, from withdrawing from the presidential public financing system for the primary season could affect McCain legally, by limiting his ability to spend money until the Republican party convention this summer (and even potentially subjecting McCain to fines for violating campaign finance laws), and politically, by taking the wind out of the sails of his recent attacks on Sen. Obama for suggesting Obama may back out of a pledge to take public financing for the fall campaign if his Republican challenger does. The developments look to be good news for Obama, at least in the short term.

Here's the relevant background: Federal law establishes voluntary presidential public financing system, which provides matching funds for participating candidates in the primary period (matching the first $250 donated per contributor) provided the candidate accepts spending limits. There's both a national spending limit of around $54 million through the time of the candidate's nomination during the summer convention and more easily-circumvented state-by state limits. In the general election, participating major party candidates receive a flat grant (expected to be about $85 million in the 2008 election) provided they agree to raise no funds (except up to $20 million for administrative and legal expenses) for themselves in the general election. In 2004, both George W. Bush and John Kerry opted out during the primary season. Bush raised $258 million in contributions and Kerry raised $241 million during the primary season. Both opted in during the general election, though there was ample fundraising for the national parties to supplement the federal limits.

Obama and Clinton decided to opt out during the primary season. This turned out to be a smart decision especially for Obama, who is breaking fundraising records, especially from small donors. McCain at first decided to opt out as well, so that he would not be bound by the spending limit. Obama pledged to opt in during the general election, provided he was the party's nominee and his Republican counterpart agreed to do so as well. McCain agreed to the pledge. Obama is raising money for the general election now, but has promised to return it if he opts in for public financing.

Here's where things got tricky. When McCain's campaign hit the summer doldrums, he decided to opt into the public financing system (a decision John Edwards made as well as his campaign faltered). But then McCain rebounded, and he sent a letter to the FEC withdrawing his decision to opt in. He relied upon a 2003 FEC decision that allowed Richard Gephardt to withdraw from the system given that Gephardt had not yet received any federal funds yet. Meanwhile, as Marc Schmitt has documented (see here, here, and here), McCain, in applying for a campaign loan, apparently promised to remain a candidate and opt back in to the system in the event his campaign faltered again.

McCain sent a letter to the FEC telling them he was withdrawing from the system for the primary. He also and went on the attack against Obama, claiming as a flip-flop Obama's failure to reaffirm his pledge to take public financing in the general election. (Obama's response has been that he will only make the agreement under certain conditions: "The candidates will have to commit to discouraging cheating by their supporters; to refusing fundraising help to outside groups; and to limiting their own parties to legal forms of involvement. And the agreement may have to address the amounts that Senator McCain, the presumptive nominee of his party, will spend for the general election while the Democratic primary contest continues.") McCain continued to pound the flip-flop point, until today.

Today the chairman of the FEC, David Mason, sent a letter to McCain telling McCain that he can't withdraw from the public financing system for the primary until the FEC has enough members to constitute a quorum. The FEC is without a quorum because of a fight between Senate Democrats (led by Obama and Sen. Feingold) and Republicans over President Bush's nomination of Hans von Spakovsky to the FEC. Von Spakovsky, as I've explained in Slate, was one of the administration's "voter fraud warriors" responsible for, among other things, approving Texas's controversial mid-decade redistricting and Georgia's photo identification law for voting. In retaliation for Obama and Feingold's hold on von Spakovsky's nomination, the Republican leadership put three other nominations on hold. Now the FEC does not have enough members to engage in certain actions, such as granting McCain the right to withdraw from the campaign finance system.

The Washington Post reports that McCain has already spent $49 million (much of it subject to the spending limits) and now he's in a pickle. He can try to go to court to try to get a court to order the FEC to grant his request for a withdrawal but we are in uncharted territory. Can a court order the FEC without a quorum to grant McCain's request? Can a court grant the request itself? There is no precedent on these questions of which I'm aware.

Even if Republicans were now willing to sacrifice von Spakovsky and approve other nominations to the FEC, that will take some time. Even assuming Democrats will cooperate, the Senate is now in recess. It won't happen tomorrow. So there's a good chance, without swift judicial action, that McCain will risk being found in violation of campaign finance laws.

That's probably not a problem legally (though it could be), and it is not clear that the party can fill in the gap for McCain while he's in limbo on his fundraising. But McCain faces at least a political problem. More than anyone else, Sen. McCain's name is synonymous with campaign finance reform (think McCain-Feingold). If he's arguably in violation of the law, that will tarnish his reputation. He may be able to make technically correct arguments that he is not in violation, but the smell is bad. And with this issue lingering, it will be hard for the opt out-opt in-opt out McCain to make political hay out of. Obama's hedging on whether to opt in during the general election.

What got both Obama and McCain into these problems in the first place is that the public financing system needs updating. The spending limits need to be increased, along with the matching funds. But, as Mark Schmitt has pointed out, McCain voted against maintaining the current system, and for all of his reform credentials he has done nothing to update it to the 21st century. Maybe McCain has no one to blame but himself.

Just in Time for the Footnotes

Next Friday I'll be at a Hastings symposium presenting this paper on the constitutionality of initiated electoral college reform. I've been trying for months to get a transcript of the hearing on the constitutionality of Colorado's Amendment 36, on the ballot in 2004, raising the issues I discuss in the paper. It arrived today and I am posting it here. It should be in time for me to link to this in the paper's footnotes before it is printed in the Hastings Constitutional Law Quarterly. Bottom line: the district court judge did not reject out of hand the argument that initiated electoral college reform could be consistent with Article II. But he refused to reach the merits. Not worth more than a footnote.

Now That's One Way to Eliminate Complaints About the Polls

Tomorrow's Electionline newsletter (which will be posted here) begins with this Director's Note:

On Tuesday, my colleague Dan Seligson was notified by phone by the Washington, D.C. Board of Elections and Ethics that he will not be invited to serve as a poll worker in future elections. While no formal reason was given, the dismissal follows publication in last week's electionline Weekly of "A Ballot-Less Nightmare in the District", Dan's first-person account of his experience as a poll worker in his home precinct during February 12's D.C. presidential primary. For the record, I stand behind Dan's reporting; moreover, I continue to believe that collecting and sharing information about the voting experience--whether good, bad, or even sometimes ugly --is a crucial part of the ongoing effort to improve our nation's election system. - Doug Chapin, director.

"Back to Paper: A Case Study"

Electionline.org has issued this report, described as follows: "A new report by electionline.org details how five states that implemented electronic voting have chosen or are considering statewide paper-based optical scan systems. 'Back to Paper' explores the process by which California, Colorado, Florida, New Mexico and Ohio -- having adopted electronic voting systems -- subsequently decided to de-certify, re-examine or re-think their use."

Bob Bauer says Pro-Clinton 527 Will Face a Reckoning

The letter from Bob Bauer and subsequent conference call is fascinating. Bob apparently rejects the 527's reliance on the new FEC rules from WRTL. Though Bob as Obama's lawyer is presenting the case as open and shut, it is worth recalling the indeterminancy of those rules that Bob highlighted writing in his own capacity a few months ago:

The arguments about issue advocacy will not peter out, of course, after WRTL or the experience with 527s in 2004. Groups, individuals, corporations and unions have the need or desire to speak to the campaign issues, or they will find in the campaigns just the opportunity they want to highlight an issue or introduce it to a national audience. And if they speak, they will do so in a regulatory environment thick with risk created by indeterminate "rules" All these speakers can be told is this: that they should avoid activity that we all know is regulated campaign activity, or accept the consequences.

Update: See this memo from Karen Getman for ALP defending this as issue advocacy under WRTL.

"Newly Released January 2008 Reports Highlight Obama's Dominance in Presidential Fundraising"

The Campaign Finance Institute has issued this press release, with the subhead: "Contributions from Small Donors Rose: Obama 46%, Clinton 35%, Romney 31%, McCain 24%."

"Senate passes bill requiring ID at polls"

AP offers this news from Mississippi.

"Race Matters Less in Politics of South"

When I read this piece in this morning's NY Times, it made me wonder: where is the three-judge court opinion in the NAMUDNO case, challenging the constitutionality of the renewed section 5 of the VRA?

"Independent Group to Air TV Ads Echoing Clinton Attacks on Obama"

This Washington Post article also gives details on the presidential candidates' fundraising. See also this comment by the Center for Competitive Politics.

"McCain Loan Raises FEC Questions"

AP offers this report, which begins: "The government's top campaign finance regulator says John McCain can't drop out of the primary election's public financing system until he answers questions about a loan he obtained to kickstart his once faltering presidential campaign." You can find the FEC's letter to Sen. McCain here (see also McCain's letter to FEC and McCain loan documents).

From the FEC letter to McCain:

[W]e consider your letter as a request that the Commission withdraw its previous certifications [of you as a candidate entitled to matching funds in the presidential primary season]. Just as 2 U.S.C. s 437c(c) requires an affirmative vote of four Commissioners to make these certifications, it requires an affirmative vote of four Commissioners to withdraw them. Therefore the Commission will consider your request at such time as it has a quorum.

We note that in your letter, you state that neither you nor your committee has pledged certification of Matching Payment funds as security for private financing. In preparation for Commission consideration of your request upon establishment of a quorum, we invite you to expand on the rationale for that conclusion, including but not limited to addressing the following provisions of the loan agreement executed between John McCain 2008, Inc. and Fidelity and Trust Bank of Bethesda....

"An unfettered Internet best serves democracy"

Adam Bonin has written this oped for the Philadelphia Inquirer.

Voting 3 or 4 Times This Year to Fill the CA-12 Congressional Seat?

It could happen. And Larry Lessig may run for the seat, vacated by the death of Rep. Lantos.

"Politics - Toothless Election Watchdog"

Eliza Newlin Carney has written this story ($) for the National Journal. It begins: "A Senate standoff has rendered the Federal Election Commission toothless as a watchdog agency by depriving it of the quorum necessary to enforce and interpret election laws."

View the Ad from the Pro-Clinton 527

Here. "Tell Hillary to Keep Working."

Plagiarism by Clinton Supporter?

With all the talk about Sen. Obama's alleged plagiarism, I thought this was interesting. According to this article, Tom Buffenbarger, the president of the machinists' union, said this in a speech supporting Sen. Clinton (video here at about 9 minutes):

I've got news for all the latte-drinking, Prius-driving, Birkenstock-wearing, trust-fund babies crowding in to hear him speak! This guy won't last a round against the Republican attack machine. He's a poet, not a fighter.

It reminded me of a 2004 Club for Growth ad stating that

Howard Dean should take his tax hiking, government expanding, latte drinking, sushi eating, Volvo driving, New York Times reading, body piercing, Hollywood loving, left wing freak show back to Vermont where it belongs.

"Mike Bloomberg Claims Vote 'Fraud'"

The NY Post offers this report.

More on the Obama-McCain Public Financing Flap

Senator Obama writes this USA Today oped in response to this USA Today editorial. A snippet from Obama: "I propose a meaningful agreement in good faith that results in real spending limits. The candidates will have to commit to discouraging cheating by their supporters; to refusing fundraising help to outside groups; and to limiting their own parties to legal forms of involvement. And the agreement may have to address the amounts that Senator McCain, the presumptive nominee of his party, will spend for the general election while the Democratic primary contest continues."

For more on controversy surrounding Sen. McCain's opt in, opt out to public financing in the primary season, see the three posts here, here, and here by Marc Schmitt at TAPPED.

"Jumping the Line"

Joshua Spivak has written this Forbes commentary, which begins: "With the Democratic primary race still tight, and discussion now centering on delegate totals and a possible convention fight, commentators have ramped up their criticism of the decisions by Democrat leaders in Florida and Michigan to jump the primary line, moving up their voting dates before Feb. 5 at the expense of losing their delegates to the Democratic convention. But the critics are missing the point: The two states have accomplished their goal, wildly succeeding in capturing influence in the primary process."

"Small Online Contributions Add Up to Huge Fund-Raising Edge for Obama"

The NY Times offers this report. Key statistic: Obama "brought in $28 million online, with 90 percent of those transactions coming from people who donated $100 or less, and 40 percent from donors who gave $25 or less, suggesting that these contributors could be tapped for more."

I'm writing a short academic piece on the positive political equality aspects of the rise of the small donor, and the substitution of the Internet-driven small donor pool for the almost-dead presidential public financing system.

See also Dan Morain's Feb. 14 story on small donors and Bob Bauer's comments on the NY Times piece.

"Pro-Clinton 527 Prepares For Ohio, PA and Texas"

Marc Ambinder reports.

"HOUSE DEMOCRATS HOLD AN EARLY FINANCIAL ADVANTAGE IN CRITICAL 2008 MATCHUPS"

The Campaign Finance Institute has just released this interesting report.

Another Great Lineup

Here is a press release about a symposium on election law put together by the Journal of Politics at the University of Virginia.

Federalist Society Western Event on Direct Democracy

I'm sorry I won't be able to attend this event, with a stellar lineup of speakers.

Congressional Research Service Surveys Opinions of Local Election Officials

You can find the report here. Among the interesting findings:

On average, LEOs mildly supported a requirement for photo identification. However, 29% of respondents chose "extremely supportive," 12% "do not support at all," and the choices of the other 60% were spread across the scale of possible responses. Two-thirds also believed that requiring such identification will make elections more secure. These views do not, however, appear to be based on concerns about ineligible voters or voter fraud, which few believe are problems in their jurisdictions. In addition, 41% believe that requiring photo IDs would depress turnout, while 56%,
almost all the rest, believe it would have no impact.

"A fix for the Electoral College"

The Boston Globe offers this editorial praising the National Popular Vote. The bill is on the agenda in Washington State.

Voter ID Problem for Nursing Home Provisional Ballots in Georgia

See here: "he State Election Board fined a Valdosta nursing home activity director Thursday for improperly assisting residents in registering and voting. The board also learned that 71 percent of people casting a provisional ballot because they have no photo ID with them did not return to prove their identity so their votes could count."

5 Reasons Ned Foley is Worried About the March 4 Ohio Primary Vote

This list reasonably creates some apprehension about whether Ohio election administration is up to the important task before it in two weeks. I expect that in light of Ned's posting, both the Clinton and Obama campaigns will organize lawyer volunteers to deal with possible problems.

"A Rotten Way to Pick a President"

Sean Wilentz and Julian E. Zelizer have written this Washington Post opinion piece. Bob Bauer comments.

"Gary Hart: Unintended consequences in 2008 election"

See this Denver Post oped.

"In closing state budget gap, vast sums are off limits; Voters have passed initiatives that lock in billions to novel social and recreational programs. Meanwhile, basic services are threatened."

The LA Times offers this report.

Apparently No Ruling Coming Today on Citizens United Motion to Expedite

See here.

Brad Smith and Steve Simpson WaPo Oped on SpeechNow case

I missed this from Saturday's paper. Thanks to Allison for the pointer.

Indiana Considers No Excuse Absentee Balloting; Its Passage Could Be Relevant to Crawford Case Currently Before the Supreme Court.

See this story in the Indianapolis Star. Thanks to Robbin Stewart for the pointer.

"L.A. County ballot design went unnoticed for six years"

The LA Times offers this extensive story on the "bubble trouble" controversy. It includes the first quotes about the problem I've seen from recently retired LA Registrar-Recorder Conny McCormack.

What was correct in the original version of this story on alleged absentee ballot fraud?

Here.

"McCain Got Loan by Pledging to Seek Federal Funds"

This is interesting.

"Winning Texas: System Worries Clinton Backers"

The Washington Post offers this report on yet another crazy caucus and primary system.

No Supreme Court Order Today in Citizens United Case

As I've noted, Jim Bopp, for Citizens United, asked for expedited consideration of his appeal, requesting that the case be heard this term. According to the Supreme Court's docket, the FEC filed a motion to dismiss or affirm the case yesterday, and Citizens United filed some kind of supplementary material.

The Supreme Court issued orders today, but nothing about the Citizens United case. That might mean that a summary affirmance will appear with additional orders on Tuesday. But given that the opposition just came in yesterday, it is possible that if any Justices are interested in the case the Court will relist it for the next conference.

I've predicted a summary affirmance at this stage of the case.

California Secretary of State Sends Letter to Logan about LA's Bubble Trouble

See here.

Mann and Ornstein on Superdelegates

Tom Mann and Norm Ornstein have written this insightful oped for the NY Times. Its conclusion ("In this case, the nomination could come down to a difficult and complex credentials battle over whether to seat delegates from Michigan and Florida. To have a nomination settled in this way is a bit like having an election settled by a 5-4 vote of the Supreme Court. Averting this kind of disaster is just what superdelegates are supposed to do.") is an interesting counterpoint to the conclusion of my recent Slate article ("The Supreme Court has left such delegate fights to the political process before, and it is likely to do so again. That may be a blessing for the Democrats. They don't really want the court resolving whether Obama or Clinton will run in November, do they?").

Interesting Voting Rights Filings in the Supreme Court

Here is the Respondents' Brief in the Riley v. Kennedy case pending before the Supreme Court.

Here is respondent's opposition to the petition for cert. filed by North Carolina in Bartlett v. Strickland, raising an interesting VRA section 2 issue. Here is the League of Women Voters' amicus brief supporting cert in the case. [This last paragraph was corrected because of an earlier error describing the parties.]

UPDATE: Here is another amicus brief supporting cert in this case.

LA Bubble Trouble Redux?

See here.

Conference on NY Public Financing

The following announcement arrived via email:

The Center for Electoral Politics and Democracy at Fordham University invites you to attend a special conference, "Citizen-Owned Elections: "Public Financing Past, Present and Future," organized in partnership with the New York City Campaign Finance Board to celebrate its 20th Anniversary.

The day-long conference will be held on February 21, 2008 (8:30AM-5:00PM) at Fordham's Lincoln Center campus in Manhattan.

Rhere is no cost to attend. For additional details and to register, please visit http://www.nyccfb.info/about/20th_anniversary.aspx.

"1 million votes still untallied in California"

The Sacramento Bee offers this report. I'm scheduled to be talking about these issues on the air at 10 am on KQED's The Forum (listen here) with Sec. Bowen, Steven Weir and Kim Alexander.

"McCain and Obama Skirmish on Financing"

The NY Times offers this report. Its most important graf appears at the end of the story: "As the two campaigns dueled, people on both sides said it was possible that they would agree to accept public financing and then simply have each political party spend unlimited amounts on behalf of its candidate, including money for voter mobilization efforts and television commercials, as allowed by law."

California campaign financing stories

The Los Angeles Times offers New campaign-spending disclosure rules imposed on California politicians; Many elected officials will now have to explain how wining, dining and other expenses are tied to government business. The Sacramento Bee offers Independent campaign spending highlighted; FPPC questions effectiveness of election contribution limits.

"Seeking Superdelegates"

The Center for Responsive Politics' Capital Eye offers this report, which begins: "At this summer's Democratic National Convention, nearly 800 members of Congress, state governors and Democratic Party leaders could be the tiebreakers in the intense contest between Hillary Clinton and Barack Obama. If neither candidate can earn the support of at least 2,025 delegates in the primary voting process, the decision of who will represent the Democrats in November's presidential election will fall not to the will of the people but to these "superdelegates"--the candidates' friends, colleagues and even financial beneficiaries. Both contenders will be calling in favors. And while it would be unseemly for the candidates to hand out thousands of dollars to primary voters, or to the delegates pledged to represent the will of those voters, elected officials who are superdelegates have received at least $890,000 from Obama and Clinton in the form of campaign contributions over the last three years, according to the nonpartisan Center for Responsive Politics."

"Legal mysteries cloud ban on double-voting"

The Olympian offers this report, which begins: "You probably won't go to prison for participating in the Democratic caucuses and the Republican primary. But you would be committing a felony. Maybe."

"Rare Dual Losses in Md. Put Incumbents on Notice"

The Washington Post offers this report.

"Notes from a Caucus"

See this NYT column by Gail Collins.

"McCain's Donor List"

The Wall Street Journal offers this editorial.

"Democrats to File Election Lawsuit--Again"

The latest from Muncie, Indiana.

"Speechnow.org Files Lawsuit"

I expect this lawsuit to be very important. See also this Roll Call report ($).

"McCain Will Take Public Funds if Democrat Does"

Political Wire offers this report.

Election Law Journal 7:1 Now Available (with Free Access); Preview of ELJ 7:2

You can find the table of contents of the current issue of the Election Law Journal here, and at least temporarily the publisher has made the entire issue downloadable for free.

Look for ELJ 7:2 in April, featuring Michael McDonald and Justin Levitt on double voting, Robert Stein and co-authors on election administration and voter satisfaction, and book reviews by Mike Fitts, Andrew Geddis, Robert Mutch, and David Schleicher.

"The Money Dodge"

Roll Call offers this editorial, which concludes: "At a minimum, Congress needs to hold hearings on the consequences of BCRA. It's obviously too late to pass any reforms for the 2008 election cycle, but the ground ought to be laid for 2010 and 2012. At a minimum, BCRA contribution limits need to be raised for parties, candidates and PACs to keep them in charge of American politics. And full disclosure needs to be applied to 501s as well as 527s."

"Voters Persevere Despite Ballot Shortages, Lines"

The Washington Post offers this report.

"Judge upholds previous ruling to halt voter registration rules"

Given that the fate of the Democratic presidential nomination could hinge on Ohio, recent disputes over voting machines and election administration in the state are worrisome. It is not clear to me that this development will affect the primary.

More on LA's Bubble Trouble

See this report from the LA Registrar-Recorder to the county Board of Supervisors. The supervisors want as many votes counted as possible. See here. I was a guest on Airtalk yesterday along with someone from the Courage Campaign and an LA county supervisor talking about the issue.

Brad Smith on John McCain's Candidacy

See here via Steve Bainbridge.

Latest CFI Report on Presidential Fundraising

Don't miss it.

"Chairman Feinstein, Senator Specter Introduce Measure to Regulate Robocalls"

See this press release.

Issue of William Mitchell Law Review devoted to Election Law Issues

See here.

"Suit Against New Campaign Finance Law Claims Racial Bias"

This report appears in the NY Times. Jim Bopp is the attorney in this one too. Richard Briffault calls the claim a "stretch."

"Kathryn Pearson: Caucuses are voices of the few"

See this oped in the Minneapolis Star Tribune."

"A risk of mishaps with Pa. voting?"

The Daily Pennsylvanian offers this report.

Chief Justice Roberts: Confidential Voter

See here.

"Unequal Access: Neglecting the National Voter Registration Act, 1995-2007"

Project Vote has issued this report.

"McCain Opts Out on Funds"

The Washington Times offers this report.

"Some independent votes won't count in L.A. County"

"An estimated 49,500 votes were cast incorrectly in Los Angeles County by nonpartisan voters in the presidential primaries and cannot be counted because the voters' intentions are unclear, acting Registrar Dean Logan said Monday." Meltdown averted only by Election Administrator's prayer being answered: "Logan said the lost votes would not affect the outcome of the presidential races or the allocation of Democratic Party delegates by congressional district because in each case the margins were too large."
UPDATE: Steve Reyes writes via email:

Some thoughts on the way the story is developing:

I should note, that, based on an interview with Bob Stern on Olney's show yesterday, approximately 200,000 ballots still remained to be counted in LA County (absentees and provisional ballots). Add to this, up to 49,500 possible DTS votes that could be affected and still counted...Thus, I think it is premature to view as a foregone conclusion that the outcomes would be unaffected on a congressional district-by-district basis. At any rate, I also believe that regardless of whether the outcome is affected, voters should have the confidence that ballot design errors will not result in their votes being cast aside -- there are also a variety of statutory mechanisms, that permit the Registrar and the Supes to seek judicial /declaratory relief and/or extra time to examine ballots for an accurate vote count.

Finally, the issue of not being able to ascertain voter intent as suggested by Logan is in my view, wildly incorrect. For at least a good portion of those DTS voters that did not mark the party selection bubbles (5 or 6), they cast votes for candidates in slots 11-15. No other party, besides the Democratic Party had candidates in slots 11-15 that DTS voters were authorized to vote for. The fact that Republicans had candidates in 8-18 ignores the fact that DTS voters were not authorized to vote a Republican ballot. Taken to its logical conclusion, accepting Logan's assumptions that some DTS voters could have walked into a Republican voting booths and intent is thereby obscured, would necessarily result in all ballots (straight Dem ballots, straight Green ballots,etc. being viewed as suspect since those types of intentional or inadvertent errors are possible with all voters. Of course, those assumptions aren’t made and the machines dutifully tally votes for whom voters are authorized to cast a ballot -- even if they walked into the wrong booth. Nothing changes with DTS voters.

Sorry for the hasty response..

Disclosure: I represent Courage Campaign, which brought this issue to the Registrar's attention before the election.

"How special interests avoid spending limits"

The SF Chronicle offers this report.

"Criticism of L.A. County's voting system grows; About 100,000 nonpartisan voters cast ballots without marking a party bubble. The registrar plans to estimate uncounted votes. But the outcome isn't expected to change."

The LA Times offers this report. My earlier LA Times oped on this controversy is here.

"Clinton v. Obama: The Lawsuit"

Ted Olson has written this provocative oped for the Wall Street Journal. It concludes: "If it does happen, I'd be more than happy to loan Sen. Obama the winning briefs that helped secure the election of the legitimate winner of the 2000 election, George W. Bush."

"President's Disputed Pocket Veto Yields Quick Compromise"

Don Wolfsenberger has written this Roll Call oped ($).

Jim Bopp for John McCain

At least when the alternative is "the surrender party." ($)

"Super Tuesday Turned Into a Super Flop"

Michael McDonald has written this Roll Call oped ($).

"Ohio Officials at Odds Over Paper Ballot"

The NYT offers this report.

"This year shows why primary system must change"

Joshua Spivak has written this SF Chronicle oped.

" Huckabee challenges 'dubious' caucus count, sends lawyers here "

The vote count apparently stopped in yesterday's Washington state Republican caucuses at 87% counted with McCain and Huckabee less than 2% apart. Strange.

Portrait of Nebraska Caucus Chaos

See here.

Potential Disenfranchisement in Indiana through BMV Name Purge?

The latest here.

"A Do-Over? Democrats' Fate May Ride on It"

The Wall Street Journal offers this report. See also this NY Times story on superdelegates and this NYT oped by Tad DeVine.

"Panel Votes to End Fla. Election Probe"

The FL-13 probe in the House is over.

"Michigan's Missed Moment as Clinton-Obama Fight Continues"

Dan Balz has written this interesting post at "The Trail," a Washington Post political blog.

Will Illinois's Governor Sign the National Popular Vote Bill?

It is on his desk.

Citizens United Case on Fast Track?

Via the Supreme Court's online docket, it seems that Jim Bopp's motion to expedite this case is on the Court's conference agenda for 2/15. I'd be interested to hear if others think that the SG will file something opposing the motion in advance of the conference.

My earlier post predicted that the Court will not hear the appeal from the denial of the preliminary injunction.

"'Double bubble' causes toil, trouble in L.A. elections"

Following up on my LA Times oped yesterday, AP offers this report. On the question of the foreseeability of this problem, I noticed the following in this Sacramento Bee oped: "Worse, acting Los Angeles County Registrar of Voters Dean Logan told county supervisors that the county had used the same 'double bubble' design in 2004 and 2006. In those elections, only 40 percent of the county's decline-to-state voters' ballots were counted. It is outrageous that the county knew of this massive disenfranchisement and did not make changes. This calls for an investigation." And Mike Alvarez saw the problem coming on Feb. 1.

Voter ID Nuggets

There's a new effort toward implementing a stricter voter id requirement in Missouri.

No one reportedly was turned away from the polls in Athens, Georgia for lacking id last week. The article does not mention how many people, lacking id, were deterred from showing up to the polls in the first place.

Wendy Weiser of the Brennan Center gave this interview on voter id to PBS's "Now" program.

"What Albany Could Learn from New York City: A Model of Meaningful Campaign Finance Reform In Action"

This article by Ciara Torres-Spelliscy & Ari Weisbard appears in the inaugural issue of the Albany Government Law Review. Link via ReformNY, a new Brennan Center blog.

Will Vermont Adopt Instant Runoff Voting?

See here.

I Miss Having Ray Martinez on the EAC

Yesterday the EAC divided 2-2 along party lines in voting on two out of three items. (The party line vote is not apparent from the link but I confirmed it with the EAC's deputy communications director.)

Election Law Blog's New Look

I hope you like the red, white, and blue motif for Election 2008, along with a cleaner typeface. If you have any reactions to the new setup, or any suggestions, please send me an email.

"Bubble Trouble on the Ballot: A complicated system and confusing ballot may have spoiled the vote for many independents."

The LA Times has posted this oped of mine. It begins:

Election administrators have a tough job. They need to pull off a massive voting and vote-counting effort in a short time frame with a limited budget and a slew of underpaid poll workers. Some hiccups are inevitable. At my polling place Tuesday morning, for example, the machine that scans ballots for errors wasn't working; a technician was "on the way." A poll worker simply put my ballot and others in an envelope, and I left with the confidence that it would be properly handled and eventually counted.

Still, some problems can be avoided with a little common sense. And the "bubble trouble" fiasco in Los Angeles County -- which led many independent voters to cast ballots that may not be counted in the Democratic primary -- is simply inexcusable.

Divided Mississippi Supreme Court Holds Lott Senate Election Replacement to Be in November; Appeal to Supreme Court Possible

The court's 7-2 opinion is here. A story in The Hill is here.

From the point of view of statutory interpretation, the discussion between the majority and the dissent is fascinating. Besides raising the issue whether the governor's interpretation of the disputed Mississippi election statute is subject to Chevron deference, the debate turns on whether "year" really means "calendar year" or "365 days" and whether an election which "shall be held" in the same year could have already happened. There is an impassioned dissent, which the majority analogizes to a boy marching the wrong way in a parade and claiming everyone else is going the wrong way.

Part of the basis for the court's decision rests on its interpretation of the 17th Amendment, and I believe it therefore presents an issue that could be decided by the Supreme Court, if the Mississippi attorney general chooses to seek cert. My earlier coverage of the statutory interpretation issue is here.

CCP on the American Apparel Controversy

See here.

"Voting machines cleared in 2006 undervote; GAO says touch-screens didn't cause undervote"

The Herald-Tribune (Sarasota) offers this report, which begins: "U.S. Rep. Vern Buchanan's campaign claimed a 'huge victory' late Wednesday when it released a federal report that found Sarasota County's touch-screen voting machines were not the cause of 18,000 undervotes in the 2006 congressional election. In a draft report provided by Buchanan's campaign, the U.S. Government Accountability Office said the touch-screen machines 'did not contribute to the large undervote' in the 13th Congressional District election, in which Buchanan, a Republican, was declared the winner by 369 votes over Democrat Christine Jennings." The newspaper has posted the draft report here. The Jennings camp is crying foul over the release.

"Clinton, Obama still waiting for vote count in New Mexico"

AP offers this report. More provisional ballot issues in Arizona.

"Term limits backers shot themselves in the ballot box"

George Skelton has written this LA Times column on the defeat of California's Prop. 93.

"A Fine Mess"

Marc Ambinder has written this excellent oped, which tracks what I've been thinking about the delegate process this year. The only source of potential disagreement is that I think Marc downplays the potential havoc to be wreaked by the Florida/Michigan delegate controversy on the Democratic side. See also this WSJ piece on Superdelegates.

"Clinton Lent Campaign $5 Million, Considers More"

Interesting. More from Mark Ambinder.

"Super Tuesday and Provisional Ballots"

Don't miss this post from Ned Foley on the astounding 10-12% provisional vote rate in New Mexico. Litigation may be on the way. Ned also links to this chapter he's written on provisional voting in 2004 and 2006. Must read.

"Public Financing: McCain Flip-Flops"

Adam Bonin has this post at DailyKos.

"Scalia to Determine Democratic Nominee"

See this (tongue in cheek?) piece at the Washington Post's Achenblog. As I concluded my Slate piece yesterday, "The Supreme Court has left such delegate fights to the political process before, and it is likely to do so again. That may be a blessing for the Democrats. They don't really want the court resolving whether Obama or Clinton will run in November, do they?"

"Big Money's Big Mouth"

Edward Bonnie has this oped in the Louisville Courier-Journal.

"Manufacturing Group Files Suit Over Ethics Law"

The Hill offers this report, which begins: "The National Association of Manufacturers (NAM) is suing the federal government over the new lobbying and ethics law, saying the measure infringes on their constitutional rights for freedom of association." The briefs are here.

"Four Indicted For Voter Fraud"

See this piece by Texas attorney general Gregg Abbott.

"Voter ID: The Solution, or the Problem?"

See these letters to the editor in response to the Carter-Baker NY Times oped.

"Few election glitches, except for independents"

The LA Times offers this report on the "bubble trouble." I'll have more to say about this soon.

And check out the invisible ink story.

So big apologies to Heather Gerken. Indeed no bar is too low.

"What Ever Happened to 'One Person, One Vote?' Why the Crazy Caucus and Primary Rules are Legal"

I've just written this Jurisprudence essay for Slate. It begins:

In the Iowa Democratic caucuses last month, Democrats had no right to cast a secret ballot. In tonight's Super Tuesday primary, Republican Party rules dictate that the state of Georgia will send more delegates (72) than Illinois (70) to the party's presidential nominating convention. Illinois has a larger population than Georgia, but Georgia has more reliable Republican voters. In the Democratic Nevada caucuses, rural votes counted more than urban ones, and while Hillary Clinton got more popular votes in the state than Barack Obama, it appears Obama will capture 13 of Nevada's Democratic delegates compared to Clinton's 12. Orthodox Jews complained that they couldn't vote in the Saturday morning Nevada caucuses. In California tonight, if neither Clinton nor Obama gets more than 62 percent of the vote in a congressional district, the two are likely to split the district-based delegates evenly. On the Republican side in the California primary, Romney and McCain are targeting the few Republican voters in heavily Democratic districts, because some of California's Republican delegates are awarded based on the winner of each congressional district, not the statewide winner. And when the primaries are over, under the Democratic Party rules, "superdelegates" such as big-city mayors--who have not been chosen by voters--could hold the balance of power between Clinton and Obama in a brokered summer convention.

What gives? Didn't the Supreme Court declare a "one person, one vote" principle back in the 1960s requiring the equal weighting of votes? And shouldn't this render most of these party rules unconstitutional? The short answer is no. Although most of the deviations from "one person, one vote" would be unconstitutional if a state put them to work in the general election for president, party primaries and caucuses are different. Aside from some really egregious no-nos, such as weighting candidate delegate strength according to the race of their supporters, courts are likely to stay out of disputes over the rules for choosing the parties' presidential nominees.

Center for Competitive Politics Files Amicus Brief in Shays III

See here.

Boston Globe Editorial on Election Day Registration

See here.

"States Prepare for Tests of Changes to Voting System"

The NY Times offers this report.

"The Potential Election Administration Challenges of Super Tuesday 2008"

Don't miss this Moritz comment from Steve Huefner.

"Peter Schrag: A one-of-a-kind Rube Goldberg election machine"

See this Sacramento Bee column.

"No public funds for McCain"

The Politico offers this report, which begins: "With the Republican presidential nomination within reach, John McCain is reshaping his campaign to press on without public financing that could limit his spring spending, senior advisers say." The article notes the "legal hiccup" that McCain has already opted in to public financing, but he hasn't received any money. Those in the know have debated whether McCain can pull out now.

No worries. The FEC will just resolve the question. Oh wait.

"Calif. Election Officials Anticipating Extended Vote Count"

AP offers this report. And there's a controversy over an extra bubble that "decline to state" (i.e., independent) voters in Los Angeles County will have to fill in in order for their presidential votes to count.

"Anti-Clinton film backers take on campaign-funding law"

The LA Times offers this report.

No Bar is Too Low Dept.

Heather Gerken kindly points me to this, in response to my earlier snarky comment.

Bob Pastor Responds to My Carter-Baker Oped Criticism

Following up on this post, I received the following email from Bob Pastor which he asked me to post on my blog:

The "Voter ID Study" that we recently published as a report (see www.american.edu/ia/cdem), and which Rick Hasen has time to criticize but apparently not time to read, makes clear that the advocates of voter ID have had problems in finding cases of voter impersonation, and the critics of voter ID have had a similar problem finding cases of people who were denied the right to cast a ballot because they did not have photo IDs. The survey that we commissioned offers a possible explanation for the failure by the critics: they couldn't find cases of registered voters without photo IDs who could not cast votes because there may be very few such people.

There are other possible explanations for the failure to find people impersonating others. I recall being denied a chance to vote several years back when I lived in Georgia because my name had been checked as having voted, even though I had not voted. That could have been a clerical mistake, or it could have meant that someone impersonated me. Who knows? I complained, but I doubt my complaint was registered because we did not have a procedure, as many countries have, for registering complaints at the precinct and allowing analysts to examine them to determine the magnitude of particular problems.

With regard to our Voter ID study, Rick said there were "some serious methodological questions," but he doesn't say what they are. We commissioned a survey of three states, and found a very low number -- 1.2 percent --of registered voters who did not have photo IDs. I was very surprised by that, and posed dozens of questions to the people who did the polls. I then assembled a group of five senior methodologists that included Rob Santos, the senior methodologist at the Urban Institute, and four experts from American University, who had not been involved in the study and are known for their skills and independence. Only after they had done extensive reviews of the data, and declared it sound methodologically, did we decide to issue the report. This took us about three months. Based on their very thorough evaluations, which are summarized in the report, we issued the report. It is true that the paper has not yet been refereed by a journal, but we will submit it soon, and are confident -- based on what we have already done -- that its methodology will hold up.

The Carter-Baker report said: "There is no evidence of extensive fraud in U.S. elections or of multiple voting, but both occur, and it could affect the outcome of a close election." The question remains how to generate confidence. In our recent survey, we found that the perception of fraud is quite high -- nearly one-fifth of registered voters in the three states saw or heard of it in their precincts and nearly two-thirds heard of it in other places. It seems unlikely that the reality is as bad as the perception, but to instill confidence in the system, we need to find ways to alter the perception. Our survey found that more than two-thirds of registered voters in all three states thought that the electoral system would be more trusted if voters were required to show photo IDs.

The Carter-Baker report, the CDEM study, and the op-ed all underscore the importance of applying such ID requirements in a manner that would increase -- not reduce -- the number of voters. In the op-ed, Carter and Baker state that the current laws do not do that. Our study suggests that the problem is not IDs per se, but the fact that certain groups of people -- minorities, elderly -- are not registered to vote. With an affirmative effort by the states, as recommend by the Carter-Baker Commission, and repeated in the op-ed, we could use the ID requirement to expand the registered base and provide free photo IDs at the same time. Carter and Baker argue for changes in the laws that would have states play an "affirmative role" to go out to areas where certain groups of people -- the elderly, minorities -- may be less likely to be registered or have photo IDs and do both.

That is the real importance of the Carter-Baker oped. It criticizes Republicans for legislating IDs without making it easier to get those IDs, and it criticizes Democrats for abdication from the debate instead of trying to craft the laws to expand the voter base while acknowledging concerns about ballot integrity. It is only when that gap is bridged that we will have a better electoral system.

Finally, Rick criticizes the op-ed for not doing an extensive review of the literature. I can't think of a lot of 700 word op-eds that do that, but if he wants a review, he should read our report. We summarize and analyze numerous studies, including one that he apparently cites that suggests that the percentage of registered voters in Indiana without photo IDs is very high. We raise some specific questions about the paper's methodology, which is not available, though we requested it. That paper also was not refereed, though I don't think Rick mentions that.

Robert A. Pastor
Director, Center for Democracy and Election Management
American University

2. The report itself does have a fair discussion of the Barreto paper. But that's not the point. The Carter-Baker oped (which I now believe more than ever must have been drafted by Bob) does not mention that there are other conflicting studies out there, and presents the 1.2% figure as gospel. Though Bob presents the "real importance" of the oped as trying to move beyond partisanship, I see a more partisan project at work here: to convince the Supreme Court justices in the Crawford case to accept that 1.2% figure as gospel and uphold the Indiana law. But maybe, given my own amicus brief in the case, this view of the Carter-Baker oped is to be expected.
UPDATE: More from Bob Pastor:

1. I really don't understand how Rick can discern a partisan project at work in the Carter-Baker op-ed. Both Carter and Baker make very clear that they view that both Democrats and Republicans have legitimate concerns, and they express the hope that the Court will find a way to reflect both concerns in their decision.

2. While the op-ed does not have a literature review, it does say this about the 1.2 percent figure: "While the sample was small, and the margin of error was therefore high [4.5%], we were pleased that so few registered voters lacked photo IDs. that was pretty good news. The bad news, however, was this: While the numbers of registered voters without valid photo IDs were few, the groups least like to have them were women, African-Americans, and Democrats. Surveys in other states, of course, may well present a different result."

3. I think this is further proof that there is no partisan project to their recommendation, and it is hard to see how Rick could describe the 1.2 percent figure as "gospel" in the light of the qualifications and caveats above. Unlike Rick, neither Carter, Baker, nor I chose to take a position in the Indiana case.

Pastor defends with an appeal to the limitations of a 700 word op-ed. There are indeed such limitations: there are all sorts of qualifications, caveats, and subtleties necessarily sacrificed to this form. This objection seems to miss the point, however. Precisely because it is the form used for public advocacy, the choice of content--a choice that must be carefully made when space is tight--akes on special significance. Op-eds are read quickly; they are read for the broader message and for the basic lines of argument drawn to support it. In the Carter-Baker op-ed, the decision was made to use data, as one of such lines of argument, and the incorporation of that data into an opinion piece authored by an ex-President and a former Secretary of State necessarily gives it more of a profile, more credibility, than it may yet deserve.

I have read Rick Hasen's blog regarding the CDEM Voter ID study and wish to make the following comment: First, as a co-author of the report I welcome critical review and comment on the scientific rigor of the CDEM study. Rick Hasen questions the sampling and the data collection methodology of the study. Specifically, on January 10 the blog states "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." A response to this comment appears below.
Our mixed mode survey design for the Voter ID study explicitly included registered voters with telephone access as well as those without telephone access (the latter we captured via a mail-in component of the survey). And we clearly stated that the survey excludes non-registered voters (i.e., adult citizens who are eligible to be registered but are not; these folks might reasonably be expected to have a higher rate of no ID).
With regard to the telephone component, you mentioned in your blog a concern about self-selection from interviewing only people who happen to be at home with telephone access. But our survey data collection protocol employed a rigorous minimum 8-callback rule that spanned all days of the week, thus avoiding altogether an 'easy’'quota sample (just getting the 'easiest-to-reach'’ respondents and stopping our fieldwork when the targets were achieved). The 8-callback rule represents conventional social science industry norm for telephone sample surveys. Moreover, we reported our response rates and included explicit weighting adjustments to compensate for potential nonresponse and noncoverage biases.
Finally, we substantially increased the size of our margins of error to appropriately reflect the disproportionate stratified sample design (i.e., the oversampling of registered voters with telephone access). The net result was that we report margins of error of +/- 4.5% rather than +/-2.2% (the latter represents the margins of error for an equivalent sized simple random sample).
From a scientific/statistical design perspective, there are few if any ways to increase rigor (within available budget constraints) beyond what was done. In our analyses we took great pains to avoid overstating the survey results, specifically taking into account the margins of error of survey estimates. We also took great pains to explicitly discuss the limitations of our research (see Section F), and we wish others who publish their research findings would aspire to such transparency.
We are not saying that our study is without shortcomings, as all studies have limitations. We have been open about our methodology and limitations so that others including you and your readers can judge for yourselves the rigor and applicability of the survey findings.
Robert Santos
Senior Institute Methodologist
The Urban Institute
Washington, DC

Wendy Weiser on the Indiana BMV Purge

Don't miss this post.

"Convention Party Do's and Don'ts"

Ben Pershing has this post on the Washington Post's "Capitol Briefing" blog.

"Stealthy Groups Shake Up Races"

The Wall Street Journal offers this report.

Former FEC Chair Michael Toner Has A Different View than Former FEC Chair Brad Smith about the McCain Campaign Finance Conundrum

See here.

Is the California Electoral College Measure Officially Dead?

I seem to recall that today was the deadline to turn in signatures for the measure which would change the allocation of California's electoral college votes from winner take all to a congressionally based system. So it looks like the measure will meet its demise today.

I've written a paper on the constitutional question of electoral college reform by initiative (draft here), an issue which is almost sure to come up some time in the next decade (especially as the National Popular Vote plan continues to be pushed). I'll be presenting the paper at this Hastings Constitutional Law Quarterly symposium on Feb. 29.

"Record outside spending, mixed results"

The Politico offers this report.

"Confessions of a poll worker"

Don't miss this LA Times oped by Ellen Slezak, which concludes: "So, please, on Tuesday, and then again in November, don't forget to vote. And, please, be patient with your election clerk when you do -- she means well, but she's only had 90 minutes of training."

"How to untangle the politics of Super Tuesday primaries"

The Christian Science Monitor offers this report.

Law and Politics Book Review of "The Final Arbiter" Book on Bush v. Gore

See here.

"Older Voters: Opportunities and Challenges in the 2008 Elections"

The U.S. Senate Special Committee on Aging recently held this hearing.

Heather Gerken's Modest Proposal

Don't run out of ballots. Talk about setting a low bar!

"Ruling ejects public from tally of votes"

Dan Smith sends along this troubling report from Florida, which begins: "A little-known legal opinion issued days before Florida's presidential primary has slammed the door on public oversight of the final vote tally in Florida elections."

"BMV warns 90,000 that licenses, IDs might be revoked"

AP offers this report from Indiana. How will this effect voters who must use the BMV card as ID in Indiana in order to vote?

"The Politics of Presidential Selection"

The new issue of The Forum has some very interesting looking articles. Check it out.

Brad Smith on John McCain's Campaign Finance Conundrum

This must read post could give serious indigestion to John McCain supporters.

New Carter-Baker Oped on Voter IDs

You can find the NY Times piece here. I share the sentiment that the Supreme Court should move beyond partisanship in the Crawford (Indiana voter ID) case. But I am troubled by a number of things about the oped, including its failure to acknowledge the lack of any credible evidence, either before or after the Carter-Baker commission report issued, showing that impersonation voter fraud at the polls is a serious problem meriting the use of these ids. What I find most troubling about the oped, which I assume was written primarily by Bob Pastor, is its acceptance of the Pastor-led statistics on the effect of voter id requirements on voter turnout. The Pastor-led report, like other reports on this question that have reached widely variant results (another point not mentioned in the Carter-Baker oped), has not been peer reviewed and raises some serious methodological questions.

In this amicus brief in Crawford, I try to set forth how the Court should deal with the constitutionality of such laws in the absence of good social science evidence on these questions. UPDATE: Bob Bauer comments.

A New Variation on Vote Early and Often

See here.

More on Absentee Ballot Fraud Investigation in Indiana

See here.

"Now Showing: 'Hillary: The Movie' and Election Law Gripes"

The Christian Science Monitor offers this report.

Is John McCain in a Public Financing Conundrum?"

See this interesting post at TAPPED.

"Redistricting plan breezes through Senate panel"

This news story begins: "A coalition of Virginia political leaders said Tuesday that the partisan split between the Senate and House of Delegates offers a historic chance to pass a bill to overhaul the once-a-decade process that sets state and federal legislative districts."

"Stanford's Lessig tackling even bigger battle"

According to this article in the SF Chronicle, Larry Lessig "hopes to take a page from the copyright fight and launch a grassroots movement. It would push political candidates to commit to three basic pledges: to abolish pork-barrel spending, to refuse to accept money from lobbyists and to finance their campaigns publicly."