"Ga. Democracts sue over voter ID law"

The Atlanta Journal-Constitution has this report on a new state-court lawsuit in Georgia.

NAMUDNO Roundup

Coverage of yesterday's decision upholding the extension of Section 5 of the VRA may be found in the Washington Post, NY Times, and Austin American-Statesman. In addition to Rick's post yesterday, Lyle Denniston offers commentary on SCOTUSBlog, saying the case is "almost certainly headed to the Supreme Court in the summer or fall."

"Return to paper ballots? Not so fast."

Bryan Pfaffenberger has this comment on the history of voting equipment, drawing this lesson: "We gave up hand-counted paper ballots (HCPB) for good reason -- and resuming their use might be a very bad idea."

"As election nears, some states fail to meet mandates to help voters register"

Electionline.org offers this report on voting rights advocates' allegations that many states aren't complying with the National Voter Registration Act.

A Few Jet Lagged Thoughts on NAMUDNO

I'm still in London, was out all day, and didn't have a chance to even see the NAMUDNO opinion until about an hour ago. For what it's worth, here's what I wrote on Sept. 12, 2006, when this panel was named:

This is likely a good draw for defenders of the constitutionality of section 5. But I don't think the lower court opinion is going to matter very much, however it comes out. This issue---either in this case or one of the others being filed---will be resolved when the Supreme Court resolves it.

Having looked quickly today at the opinion, I'd say that this is about the best that supporters of the law could have hoped for. Here's a well-written and well-reasoned opinion, arguing in the alternative, relying on stare decisis, careful parsing of cases, and the best presentation of the evidence that could be made on this record.

Having said that, I have a hard time believing it would convince someone like Chief Justice Roberts. What could be convincing to him, however, is the political fallout that would come from a decision striking down the VRA. On the third hand, let's not forget what Justices Stevens wrote this week about the necessity of the VRA in his Riley dissent. For my own pre-NAMUDNO take on the constitutional issues, see this article. (Statistics from the article, cited in my testimony before the Senate Judiciary Committee on VRA renewal, are discussed in the court's opinion.)

I wonder too whether the Court will want to take advantage of some technical reason (such as standing or the facial/as applied challenge issue) to duck the question in this case and put it over to a future case.

Breaking News: NAMUDNO Decided, Challenge to VRA Rejected

A three-judge panel of the U.S. District Court for the District of Columbia has rejected a constitutional challenge to Section 5 of the Voting Rights Act, as reauthorized and extended in 2006. The unanimous opinion in Northwest Austin Municipal Utlity District Number One v. Mukasey, authored by Judge David Tatel, may be found here. Early coverage may be found here.

"Civil Rights Lawyers' Ignorance of Local Government Law"

Rick Hills has this very interesting post on Riley v. Kennedy, arguing that the "larger moral" in the case is that "[t]he feds should be extra-cautious about messing with state and local governments' structure."

Previews of the Michigan-Florida Meeting

The Christian Science Monitor has this report on tomorrow's meeting of the DNC's Rules and Bylaws Committee, which it calls "the most delicate moment of the entire primary season." For more, see today's stories in the Detroit Free Press, LA Times, Real Clear Politics, Salon, USA Today, and Wall Street Journal.

"Obama Campaign Used Party Rules to Foil Clinton"

The AP offers this report on how the Obama campaign's mastery of the arcane delegate-selection rules helped secure his front-runner status.

The EAC's New Open Meeting Policy

New EAC Chair Rosemary Rodriguez yesterday issued this statement of policy on public meetings. Here's the key portion, which goes beyond the requirements of the Sunshine Act: "During my term as Chair, I will require the EAC to make its agenda public at least 21 days before the next regularly scheduled meeting. Additionally, I will schedule time during each meeting to discuss possible agenda items with Commissioners so that observers will have an idea of what to expect in remaining months."

Colorado's Voter Registration Database

The Rocky Mountain News reports here on problems and cost overruns with the state's voter registration database, required by HAVA. Colorado isn't the only state to have had trouble with its database.

"Arkansas Election Officials Baffled by Machines that Flipped Race"

Wired News reports here.

"Chipping Away at the VRA One Court Decision at a Time"

Janai Nelson of St. John's School of Law has this post on the Supreme Court's decision earlier this week in Riley v. Kennedy. She says: "Despite its highly technical facts and likely narrow application, Riley is significant because it limits the reach of an integral provision of one of the most transformative civil rights statutes and bodies of American election law—the Voting Rights Act of 1965 (VRA).... More important, the Riley decision comes at a precarious time for Section 5 of the VRA as Northwest Austin Municipal Utility District v. Mukasey (NAMUDNO), a Texas case that challenges the constitutionality of Section 5 as a whole, will soon be poised for Supreme Court review."

"EAC Awards Five States $10 Million to Improve Election Data Collection"

And the winners are: Illinois, Minnesota, Ohio, Pennsylvania, and Wisconsin. For more on this much-needed project to improve the collection of election administration data, see this description from the EAC, as well as this post describing the proposal as it was going through Congress.

In what's surely a coincidence, four of the five states receiving grants are ones that my Moritz colleagues and I profiled in our report last year: From Registration to Recounts: The Election Ecosystems of Five Midwestern States. Does the EAC think there's a special need for better information from the Midwest?

"Tell Speaker Pelosi We Need a Strong Global Warming Bill Now"

Here is an interesting example of what appears at first glance to be a genuine issue ad nonetheless subject to BCRA's disclosure requirements.

"Democratic panel set to resolve Clinton-Obama delegate dispute"

Following up on yesterday's posts on the Michigan/Florida delegate controversy (here and here), see this report from today's LA Times.

Pastor Comments on the Carter-Baker Commission and Crawford

Bob Pastor of American University's Center for Democracy and Election Management, who served as Executive Director of the Carter-Baker Commission, offers the following comments. (I've added links to sources he references).

After the Supreme Court decision on Crawford, there were a number of thoughtful comments by Heather Gerken, Bob Bauer, and Bradley Smith about the influence of the Carter-Baker Commission on that decision. I did not respond then, mostly because other commitments prevented me from doing so, but I also thought it might be helpful to take some distance before responding.

Gerken and Bauer expressed concern with the Carter-Baker Commission as a "shadow institution," asking by what authority their views should be taken more seriously than academics, Congressman, or partisans. In their view, the Commission's decision on IDs reflected a political compromise and ignored "the empirical evidence amassed by Spencer Overton" while unfairly limiting dissents to 250 words. Smith bemoaned that he had not been selected and that he knew more about election law than most, if not all, of the members. Others have argued that the Commission did not do adequate research to permit it to reach the conclusions that it did.

As a Senior Advisor to the Carter-Ford Commission and then Executive Director and member of the Carter-Baker Commission, I welcome the comments and would like to respond. First, because Carter-Ford had undertaken substantial research, and we made that all available to the members of the Carter-Baker Commission, we did not feel the need to replicate their work or undertake as extensive an analysis as before. At the beginning, we set up a Research Committee of twenty-four Academic Advisors, including professor Hasen, and also consulted on specific issues with a separate group of twenty-four experts. (The list of both is at the back of the report, along with the research. See http://www.american.edu/ia/cfer/.) Where we saw gaps in the substantial research that had been done since 2001, we commissioned some additional papers -- particularly on the identification card issue -- but we deliberately wanted to build on the work of the Carter-Ford Commission and other work being done, and spend more time assessing the Help America Vote Act, examining what was omitted by Carter-Ford and HAVA, and consciously looking at other national experiences. We conducted two sets of hearings with twenty-one expert witnesses, had three separate meetings with Congressional representatives, NGOS, and state election directors, and had a third entire day for discussion of the issues by all the members. In addition, we put up a website even before the Commission was announced on March 24, 2005 and invited comments, research, and testimony. We received a considerable amount from many. Regrettably, I don't recall any sent by Professor Smith.

The main debate in Carter-Ford was whether there should be a federal law and national standards on election administration. The conclusion was that there should be, and HAVA was the result, but many of us -- including Jimmy Carter -- felt that the Commission and HAVA did not go nearly as far as was needed, and the problems that followed from the 2004 election were the impetus to try again and take it further. Carter-Baker did that, and I believe the most important work was in election administration, electronic voting, and inter-operable registration. The Congress and state legislatures were not ready for these reforms, however, and each cherry-picked those that they wanted. The ID recommendations were the most controversial, and probably remain so.

For anyone who has worked on private or public Commissions, and I have been involved in many over the past thirty years, one of the most difficult tasks is the choice of members. The two Chairs made the ultimate selection and solicited names from many places, but we sought roughly for one-third to be Democrats, one-third to be Republicans, and one-third to be not obviously partisan. We also sought diversity in gender and ethnicity. We did so because we understood that election reform cannot be effective if it is partisan and, indeed, that was the main problem that had not only infected HAVA but any work by Congress since then. Carter and Baker are too smart and have been involved in too many political contests to believe that you could simply check "partisanship" at the door, but they both consciously tried to transcend it in the deliberations of the Commission, most of the time.

And this takes us to Gerken's assertion that the decision on ID's was a political compromise. The division between Democrats and Republicans had increasingly been defined by Democratic concerns about voting access and Republican concerns about ballot integrity. Eighteen of the 21 members of the Commission, led by Carter and Baker, agreed that both concerns were valid, and it was not impossible for an electoral system to incorporate both. Indeed, most democracies have done that, but it is the unusual combination of parochialism and a sense of exceptionalism that has led the United States to ignore other experiences and create the most decentralized and dysfunctional system in the world. The result of our discussions was to recommend an ID system but to use the IDs to try to expand the franchise.

We proposed using the Real ID as the instrument of identification, since Congress had already legislated it, but it should be implemented gradually over five years, and the State should play an affirmative role in sending mobile vans to communities (minorities, elderly) that have been under-registered to provide free photo IDs and to register voters. In my view, the traditional Republican conservatism was stretched further than the conventional Democratic liberalism in transforming the registration system from a passive one in which people need to go to register to an active one in which the state election authority would need to go to provide free photo IDs and registration. But the point is that almost all the Commission members agreed that both concerns -- for voter access and ballot integrity -- were valid and should be incorporated into the recommendation. I do not view that as a compromise in the sense that each side won half a point; the recommendation addresses both concerns and seeks to achieve both goals.

For me, though obviously not for my colleagues on their blogs, it was rewarding to read the various opinions of the Supreme Court. Unlike the debate in Indiana or Missouri, which extracted parts of our analysis and recommendation to make a point different than the one that the Commission made, the majority opinion used our main arguments accurately. In my opinion, Stephen Breyer's statement came closest to what the Commission was saying -- that IDs are not unconstitutional but the way in which they are implemented matters.

As far as the suppression of dissent, that is simply nonsense. Spencer Overton had adequate time and place to make his views known. The Commission members wanted the Report to be lean so that it would be read, and so they set a limit on the number of words in the dissent. Many people had strong feelings, but everyone -- except Spencer -- accepted that limitation. However, to accommodate him, we included a website in his dissent that allowed him to advertise his other views and publications too.

That takes us to the post-Crawford era. Shortly after the Supreme Court ruled, Indiana had a chance to test the thesis that the IDs would lead to massive disenfranchisement. That did not occur. Only one incident was reported, involving a group of elderly nuns. One hopes that in the period between the primary and the general election, someone will help them get free photo IDs. The Center for Democracy and Election Management, which I co-direct, and which organized the Carter-Baker Commission undertook a survey of three states, and found that the number of registered voters without photo IDs was very small. (See http://www.american.edu/ia/cdem/pdfs/VoterIDFinalReport1-9-08.pdf) Frankly, I was very so surprised and uncertain with the results that we brought in a panel of methodologists to review everything about the survey and did not issue the report until everyone was satisfied that it had passed muster.

The conclusion of that report is that the problem is not IDs, but registration. And therefore, the recommendation of the Carter-Baker Commission to encourage states to pro-actively register voters in areas where there are minorities or elderly seem even more valid today. Given the movement across the country to insist on voter IDs, wouldn't it be better if those who opposed the voter IDs because of fears of disenfranchisement would use their energy to promote the second part of the Carter-Baker Report -- to lobby state legislatures to provide resources and authority to the states to register more voters and provide them free voter IDs?

With the movement toward seeking proof of citizenship -- a logical step, but one that will raise significant problems in a few sections of the country -- it makes sense for the nation to step back from the ID debate, and ask -- as the 9/11 Commission did -- whether the time has come to have a single, national biometric ID card. That is another issue for another blog.

Finally, there is the question about "shadow institutions." I believe the Carter-Baker Commission offers the best example as to why private bipartisan/non-partisan Commissions are so important and why we are fortunate that the Supreme Court underscored its importance in their decision. As the political arena is increasingly polarized, we need to find alternative ways to incorporate the concerns of each party. Private Commissions can help in doing that. The alternatives are either stalemate or the majority party imposing its will on the other.

Ohio Election Bill

The Columbus Dispatch reports here on a pending Ohio election bill, which includes some but not all of the changes requested by Secretary of State Jennifer Brunner. The bill approved by a state senate committee reportedly would require bipartisan teams to transport ballots and memory cards, and would allow absentee ballots to be counted if received within 11 days of the election. Perhaps most significantly, the bill would limit the Secretary of State's power to issue directives, requiring public review before permanent orders and allowing only temporary directives 90 days before and 40 days after an election.

Recall that a series of directives issued by Ohio's former Secretary of State Ken Blackwell shortly before the November 2004 were at the heart of controversies that wound up in litigation, as I've detailed in Part II of this article. The bill doesn't include Brunner's proposal to allow counties to use central-count optical scan system, as the state's largest county (Cuyahoga) now wants to do.

Fifth Circuit Reverses Party Identification & Voter ID Ruling

The Fifth Circuit yesterday issued this opinion in Mississippi State Democratic Party v. Barbour, reversing a lower court opinion that had declared Mississippi's semi-closed primary statute unconstitutional and had required both party identification and photo ID to vote in a party primary. The Fifth Circuit opinion, authored by Judge Edith Jones, purports to "put the parties out of their litigation misery," finding plaintiffs' claims nonjusticiable. The AP's coverage may be found here, and Richard Winger has this post on Ballot Access News.

Harvard Presidential Primaries Symposium Documents

The transcript and other information from the Presidential Primaries Symposium at Harvard's Kennedy School of Government, which took place on April 29, may be found here.

Florida Lawsuit Against DNC Dismissed

A federal court in Tampa has, not surprisingly, thrown out a lawsuit charging the Democratic National Committee with discriminating against Florida voters by refusing the seat the delegates from the state's too-early primary. CNN has this report and the Washington Post this one.

DNC Papers on Michigan and Florida

Politico has published meeting materials for the Rules and Bylaws Committee Meeting this Saturday on the Michigan and Florida delegations. The materials include staff analyses of both the Florida and Michigan challenges.

Update: Taegan Goddard has this preview of Saturday's meeting on Political Insider.

Update 2: The NY Times has this report, which begins: "Democratic Party lawyers have determined that no more than half the delegates from Florida and Michigan can be seated at the party's August convention, dealing a blow to Senator Hillary Rodham Clinton's efforts to seat the full delegations from those states."

"2 Voter Rights Cases, One Gripping a College Town, Stir Texas"

The New York Times has this story on allegations that local election officials failed to record students from the historically black Prairie View A&M University, when they tried to register in 2006. It also reports on a case in Marshall, Texas alleging the selective enforcement of voter fraud laws to intimidate minority voters.

"Electoral College Bias Probe"

Mark Mellman has this post on The Hill, finding a pro-Democratic tilt in the 2004 general election.

Two from Richie

Over at the FairVote.blog, Rob Richie has this post on how the primary schedule has elevated the temperature of the Clinton-Obama race, and this one on the National Popular Vote plan and advance registration in Rhode Island.

"Obama, McCain clash over cash"

The Chicago Sun-Times reports here on sparring between the campaigns over the transparency of fundraising efforts. For related stories, see the NY Times, Washington Post, LA Times Blog, AP, and MSNBC.

"Clinton gets deep-pockets boost from loyalists"

The SF Chronicle has this report on the activities of the "WomenCount" political action committee, which has reportedly spent at least $140,000 in the last month on newspaper ads around the country supporting Senator Clinton.

"Dems Seek to Avoid Meltdown"

Roger Simon of Politico has this story on the upcoming meeting of the Rules and Bylaws Committee, which will consider what to do about the Michigan and Florida delegates. He reports that the committee's co-chairs, Alexis Herman and James Roosevelt Jr.,are trying to work out a compromise that would "settle the matter at this weekend's meeting avoid further bloodletting."

"Bush v. Gore Rears Its Head: The Politicization of Voting Rights"

Shahid Buttar has Part I of III on the Huffington Post, commenting on the Crawford v. Marion County decision upholding Indiana's voter ID law.

"Is the Tax-Funded Presidential Campaign System Really Broken?"

So asks Brad Smith on the Center for Competitive Politics Blog.

Report on Virginia Voting Snafu

The Virginia Board of Elections has released this report and accompanying press release on the problems in Chesterfield County in February's primary, where some precincts ran out of printed ballots, forcing voters to use scraps of paper to vote. The Richmond Times-Dispatch has more.

"Will changes cause more nightmares this Election Day?"

So asks the Orlando Sentinel, with regard to 15 Florida counties' switch from touchscreen to optical-scan voting systems.

"Signing election petitions goes high-tech"

The Columbus Dispatch has this report on a "digital pen" that would capture signatures and transmit them to be checked against a statewide voter registration database.

"FBI Interviews Arizona Staffers"

The Hill reports that "Federal agents interviewed staffers for likely Republican presidential nominee Sen. John McCain (Ariz.) as part of their corruption case against Rep. Rick Renzi (R-Ariz.)."

Riley Roundup

In addition to this insightful post from Rick Pildes, coverage of yesterday's Section 5 decision in Riley v. Kennedy may be found in stories from the ABA Journal, AP, Jurist, and Press-Register. (Email me if you find more and I'll add them.)

Update: Bob Bauer has these thoughts on "The Trivial and the Significant in Riley v. Kennedy."

Senator Obama and the Decision to Opt Out of Public Financing

Today's NY Times editorializes that Senator Obama, should he be the Democratic nominee, should opt into the public financing system in the general election:

Earlier in the campaign, Mr. Obama vowed to accept the tighter alternative of public subsidy and its spending limitations -- a not-so-shabby $85 million for the general election -- providing the Republican nominee does the same. Mr. McCain seems ready to do that, and we hope he does. Should Mr. Obama renege, he would become the first presidential candidate to reject the general-election limits.

Should he honor the pledge, Obama campaigners fear being overpowered in a parallel money assault waged by way of the Republican Party’s deep coffers in battleground states and well-financed shadow-party attack groups.

Facing such a dilemma is the stuff of political leadership. As a candidate running against money-driven Washington, Mr. Obama should follow his initial instinct to defend the public alternative. Otherwise, the 2012 campaign will become an even less inhibited chase after special-interest donors. Even with the Obama Web boom, a good half of all primary money -- some $366 million -- still comes from individuals giving $1,000 or more.

It seems to me that this editorial makes a number of points, none of which likely will (or should) compel Senator Obama to take public financing in the general election:

1. The Pledge. I've argued in detail in this Findlaw piece that it is fair to characterize both Sens. McCain and Obama as having gone back on forth on opting into public financing as their political fortunes changed. I conclude that neither candidate can be faulted for changing his mind. The public financing system is broken, and even candidates with an ideological commitment to public financing generally will have problems with the current campaign financing system.

Let's put this in perspective with some numbers. In the 2004 primary season, President Bush raised over $258 million for the primary, and Sen. Kerry raised $241 million. If they would have opted in during the primary season, they both would have faced a $50.4 million cap on their spending. It would have been political suicide for Kerry to have opted in, even if he believed in public financing, in the face of President Bush's decision to opt out.

That lesson was learned by all the serious candidates in 2008. The only candidates who opted in were candidates who had weak fundraising potential. So far, according to the latest Campaign Finance Institute report (all the rest of my figures in this post are from that report), Sen. Obama has raised $263 million so far in the primary period (and will no doubt set a record for the amount of financing raised in this period). Senator Clinton has raised $198 million so far (though she has $19 million + in debt), and Sen. McCain has raised $97 million so far. Again, even a candidate committed to revitalizing the public financing system would be committing suicide to have opted in in the 2008 primary season.

2. $85 million is shabby The Times writes that this amount is "not so shabby," which explains why Senator McCain is opting in. I think that's wrong. I think Senator McCain is opting in because he figured (1) he is likely not to be able to raise as much as Sen. Obama if they both opt out, and by opting in he can try to embarrass Sen. Obama into opting in; and (2) opting in is not a big deal for Sen. McCain, because he is likely to raise a ton of money with the RNC, which is subject to more generous contribution limits. So he's not planning on running his campaign on just $85 million. To speak of the decision to opt in today as a decision to decline private financing fails to recognize the reality of the situation.

3. The Obama "web boom" is a big deal The Times focuses on the fact that half the primary money overall has come from donations "above $1,000." Of course, thanks to McCain-Feingold, these donations are capped at $2,300. Let's look what has happened with small donations so far this year. Overall, in 2004 donations of $200 or less (what I've termed "micro-donors") made up 28% of the total of donations raised by all candidates in the primary system.

This primary season so far, these micro-donors have made up 35% of the total donations. (On the Democratic side, it has been 40%, on the Republican side, 27%). Sen. Obama alone, however, has raised nearly half of his donations (47%) from small donors giving under $200, and about one-third in donations from $1,000 to the $2300 maximum. This is a big deal. I think it is a misnomer to call it "partial public financing but I think it is fair to say that this "web boom" of small donations gives egalitarians something to cheer. If there is going to be a revitalization of public financing in the future, it likely will build on this kind of micro-donor enthusiasm through generous matching funds which would give candidates who have greater private support some greater public support. (That's much like the voucher plan I've long championed.)

In sum, I don't think either candidate at this point should be castigated for opting out of the public financing program or praised for opting into the broken system that is easily circumvented through party donations. Instead, those committed to a working public financing system should praise the candidate or candidates who pledges to fix the system when he or she gets into office with a plan that harnesses the power of the micro-donors.

Pildes on Riley Decision

Rick Pildes sent the following message to the election law listserv, reprinted by permission:

What is the significance of today's somewhat technical decision from the Supreme Court in the Riley case regarding the Voting Rights Act? In my view, the decision is consistent with the shift in philosophy regarding the VRA that has dominated the Court's decisions consinstently since the early 1990s. That shift reflects greater skepticism from the Court regarding not the core of the VRA, but regarding the boundaries of the special coverage regime under Section 5 of the Act, which singles out certain areas of the country for distinct federal oversight, and
regarding the creation of safe-minority election districts (not at issue here). More broadly, this shift reflects skepticism about whether parts of the VRA remain as necessary and justifiable in the circumstances of politics today as they did in the first generation of the VRA's existence. Indeed, the single most noteworthy line in the opinion might be from Justice Stevens' dissent, joined by Justice Souter, in which Justice Stevens goes out of his way to assert in the first paragraph that "it may well be true that today the statute is maintaining strict federal controls that are not as necessary or appropriate as they once were." That is a remarkable statement in a dissenting opinion that then goes on to hold the VRA was violated here. Perhaps the statement reflects some of the internal discussion within the Court.

The decision came down 7-2, which might obscure the significance of the signals the case sends, but note that the Court had to overturn a three-judge court below to reach this conclusion. The lower court believed, with plausible grounds, that two of the Court's major decisions from the 1970s and 1980s required holding that the practice at issue here had to be precleared by the federal government before Alabama could implement it. The Court's decision to distinguish those cases away is one manifestation of the more general shift within the Court from the era in which those cases were decided to the era that began in the 1990s and continues today. In addition, there appears to be some real discomfort (expressed at oral argument as well as in the decision) with the way the VRA has the effect in cases like this one of, in essence, putting state Supreme Courts under federal oversight; while the Court acknowledges that the Act does so, the decision amounts to a major effort on the Supreme Court's part to find that the VRA did not apply to the actions of the state court system at issue. Finally, it is also noteworthy that Justice Stevens' dissent ends in Part IV by reciting the role the Alamba Supreme Court played many years ago in disfranchisement; this is the kind of analysis one would have seen in majority opinions in the 1970s and 1980s. Now that analysis is relegated to a two-person dissenting opinion.

I have written more broadly about these shifts in the Supreme Court's vision of the VRA since the 1990s in an article titled The Decline of Legally Mandated Minority Representation.

Richard H. Pildes
Sudler Family Professor of Constitutional Law
Co-Director, NYU Center on Law and Security
NYU School of Law

I am about to leave on my trip so I had not yet looked at the Stevens dissent. I think Rick is absolutely right, and those like me worried about the constitutionality of the renewed section 5 in the NAMUDNO case have more to worry about.

Breaking News: Riley v. Kennedy Decided; Court Ducks CJ Roberts View of Section 5

The opinion is here. Check out footnote 6 (pdf 11), which leaves to another day CJ Roberts radical new reading of Section 5. Justice Stevens in dissent at pages 2-3 discusses this issue as well.

The Veepstakes Tournament

Okay, so maybe its not election law, but those with a fondness for both politics and March Madness may try their hand at filling this bracket from MSNBC.

"Obama, McCain are dueling out West"

The LA Times has this report. Could Colorado, Nevada, or New Mexico be the next Florida/Ohio?

"Awash in Contributions, Campaigns Offer Tempting Targets for Thieves"

The NY Times has this story, focusing on the alleged embezzlement of National Republican Congressional Committee funds by Christopher J. Ward.

"Judge sides with Texas Democratic Party"

The AP has this report on a decision by U.S. District Judge Fred Biery, rejecting LULAC's challenge to Texas' method for apportioning presidential delegates. The judge's order, which begins with some very interesting and unusual autobiographical comments on the context of the case, may be found here. It includes this disclosure: "Senator Clinton's husband nominated me to the federal bench, and I hope to shoot baskets some day with Senator Obama."

von Spakovsky and Rich Spar on DOJ's Voting Section

Last week, the Wall Street Journal published this op-ed by Hans von Spakovsky regarding his actions while at the Justice Department, in response to allegations made in opposition to his FEC nomination. Joe Rich, formerly of DOJ and now with the Lawyers' Committee for Civil Rights, replies in this letter to the editor.

"FEC, media can't handle Obama jackpot"

Politico reports here that the fundraising efforts of Senators Obama and Clinton have strained the capacity of the capacity of software used by the FEC.

"Panhandle county offers Web vote to military abroad"

The Miami Herald has this report on the efforts of Okaloosa County, Florida. It begins: "A small Panhandle county that is home to one of the world's largest air bases [Eglin Air Force Base] is embarking on a sweeping experiment in Internet voting that could transform elections in the 21st century."

"AZ to seek dismissal of challenge to voter ID law"

The AP has this report on proceedings in Gonzalez v. Arizona, and related cases challenging Arizona's ID requirement. The briefs may be found here. Trial is scheduled to start July 1.

Cuyahoga County's Voting Machines

The Cleveland Plain Dealer offers this editorial on the lingering uncertainty in Ohio's largest county over the voting equipment to be used in November. The issue is whether Cuyahoga County will use precinct-based scanners that gives voters notice of overvotes. The Ohio legislature passed this statute requiring precinct-based counting (see 3506.21(D)), and the board of election enacted this resolution in March in response to an ACLU lawsuit, but the board now says there's not enough time and money to get the required equipment in place. (Disclosure: I consulted with the ACLU on this case.)

Just Wondering Dept.

Some readers may recall the controversy over conservative scholar John Lott's use of a pseudonym "Mary Rosh" to praise Lott's work and defend him from critics.

I was reminded of that when a reader pointed out to me that the third comment on this post about Hans von Spakovsky came to his defense. It is signed by "Publius," the name von Spakovksy used when he wrote that anonymous law review article on voter id.

"Rendering Justice, With One Eye on Re-Election"

Adam Liptak has written this extensive article for tomorrow's NY Times.

"Disarming Our Demons: The Self-Fulfilling Prophecy of Election-Stealing"

Dahlia Lithwick has written this very interesting Slate column.

"Senators: No need for paper e-voting trails, 'electronic' ones are OK"

c|NET news has this blog post. The press release from Sens. Feinstein and Bennett is here.

"Campaign Reports Reveal More Mishandled Money"

CQ Politics offers this report.

Slate Pans HBO's "Recount"

See here.

Meanwhile, if you want more analysis of the real thing, see Charles Zelden, The Case that Must Not Be Named: Why We Need to Take the 2000 Presidential Election and the Ruling in Bush V. Gore Seriously, posted on SSRN.

"An intriguing institutional design question: shadow redistricting commissions"

Heather Gerken has this post on Balkinization.

London Calling

Yes, it's true, this is my all-time favorite album.

But The Clash aside, I'm off to London Tuesday afternoon for an international conference on campaign finance law. It should be very interesting and I'm excited to attend. Back next weekend.

While I'm gone Dan Tokaji will be ably filling in. Dan is just putting the finishing touches on the new Election Administration chapter in the new fourth edition of Election Law--Cases and Materials (Lowenstein, Hasen and Tokaji, eds., forthcoming August 2008).

I might blog a little over the weekend and from the road. But send any tips, etc. to Dan.

"Hope for a Working FEC"

The Washington Post offers this editorial.

"Senate Panel Would Allow All-Mail Voting"

AP offers this report from Ohio.

"Editorial: Still Looking for Massive Voter Fraud"

The Dallas Morning News offers this editorial.

Alabama Governor Picks Up Chief Justice Roberts' Radical Reading of Section 5 in New Jurisdictional Statement

As I explained in this May 15 post on Riley v. Kennedy, Chief Justice Roberts has advanced a reading of section 5 that is at odds with decades of practice in interpreting the law, DOJ regulations, and congressional acquiescence in renewing Section 5 without making any change in its relevant language. From my read of the oral argument, it appeared to be a rather surprising reading to Alabama Governor Riley's lawyer as well.

Now the same issue posed in the Riley v. Kennedy case has arisen again in Riley v. Plump. In the jurisdictional statement, pages 25-30, the governor embraces the argument, which would mostly eviscerate section 5. The governor is not worried, however: on page 29 he says that section 2 and other constitutional and statutory provisions would prevent discriminatory practices. I'm dubious, but am convinced the Chief Justice (and likely others) will embrace this interpretation when Riley comes out later this term.

No FEC Vote Thursday Evening

The newly-revamped and infinitely more user-friendly (but still subscriber-only) Roll Call website reported on its First Draft: Senate blog the following news: a dispute unrelated to the FEC nominations process caused Sen. Alexander to put a hold on a package of nominations, including nominations to the FEC. I cannot tell if there will be another opportunity Friday for a vote. I don't know when exactly the Senate recesses. (And of course it won't formally recess. Sen Webb will be back for pro forma sessions, to prevent President Bush from making any recess appointments.)

Does Howard Dean Favor the National Popular Vote?

See here.

New Lawsuit Filed to Try to Seat Florida's Delegates

See this Miami Herald blog post and the underlying complaint.

Though the headline says that this is a section 5 suit, in fact the complaint itself appears to only state two constitutional causes of action---one for equal protection violations and one for due process violations.

I give the chances of this lawsuit succeeding the same chances I gave to the earlier lawsuits like this---virtually nil.

Why Wasn't the Voter ID Decision 5-4?

Linda Greenhouse has some thoughts on Crawford and other cases this term.

"Democracy 21 Calls on FEC, Justice Department and IRS to Aggressively Enforce Campaign Finance and Tax Laws against 527 Groups and 501(c)(4) Groups That Illegally Spend Soft Money to Influence 2008 Election"

Democracy 21, Home of the Excruciatingly Long Press Release Title, has issued this one.

"Introducing the Voter Information Project"

What do you get when you put Google, JEHT, and Pew's Making Voting Work project together? This.

"The 28th Amendment"

Neal Rechtman has written this political thriller and actually proposed a 28th Amendment to the constitution that would change the way we can finance our elections.

He has now also penned a related essay, "Open Source Democracy 2.0."

"White House names final FEC nominee"

AP offers this report, which begins: "The White House nominated a senior Republican Senate aide Thursday to fill a seat on the Federal Election Commission, replacing a nominee who withdrew in the face of Democratic opposition.

The new nominee, Matthew S. Petersen, is the Republican chief counsel on the Senate Committee on Rules and Administration. The White House announcement came on the same day that the Rules committee sent three other FEC candidates to the Senate for a vote."

Roll Call adds this quote from Howard Gantman, spokesman for the Rules Committee: "'Once we get the official nomination and the accompanying clearance information, we will seek to expedite this nomination,' he added. 'In the meantime, we would hope that the minority would allow the other nominations to be approved by the Senate so we can have the FEC up and running again.'"

FEC Nominees Voted Out of Committee

The following press release has arrived via email:

Senate Rules and Administration Committee Approves Nominees to Federal Election Commission
- Urges Full Senate to Swiftly Confirm Nominees -

Washington, DC -- The Senate Committee on Rules and Administration, chaired by U.S. Senator Dianne Feinstein (D-Calif.), today approved the nomination of three new members to the Federal Election Commission.

"This vote means the FEC is one step closer to restoring a working quorum. This vote comes not a moment too soon. It is unconscionable that in the middle of a presidential election year, with campaign committees spending millions of dollars, that we don't have our federal election watchdog in place," Senator Feinstein said. "Clearly, we need a fully functioning Commission to ensure the integrity of our system of raising and spending campaign funds. I'm hopeful the full Senate will confirm these nominees, along with a fourth nominee whose nomination is still before the full Senate. I believe it would be a terrible mistake to delay the process further."

On May 6, 2008, the President nominated the following three individuals:
· Cynthia L. Bauerly, of Minnesota, for appointment to a term expiring April 30, 2011, for the seat held by Robert D. Lenhard;
· Caroline C. Hunter, of Florida, for appointment to a term expiring April 30, 2013, for the seat held by Michael E. Toner; and
· Donald F. McGahn, of the District of Columbia, for appointment to a term expiring April 30, 2009, for the seat held by David M. Mason.

These three nominees will now go before the full Senate for confirmation along with Steven Walther, who was previously reported to the floor.

Under the Federal Election Campaign Act, the Federal Election Commission needs four affirmative votes to take action-- to pursue litigation, audits, regulatory changes, or administrative changes to the agency. However, since the end of December, the FEC has had only two commissioners--well short of the quorum needed to conduct its business.

On June 13, 2007, the Rules Committee held a confirmation hearing to consider four FEC nominations – Robert D. Lenhard, Hans von Spakovsky, David M. Mason and Walther.

The four nominees were reported out of Committee en bloc without recommendation. The Senate did not take further action on these nominations. Mr. Lenhard and Mr. von Spakovsky have withdrawn their nominations while the White House withdrew the Mason nomination.

Still More on Commissioner Mason and the FEC

I've received a few off-the-record emails now from people who don't want to be quoted the upshot of which is the following: if you look at the history of Commissioner Mason's voting on the commission, there have been times when he has strayed from the reservation and voted with Democrats rather than have a 3-3 deadlock on some issues. Republicans were never particularly happy with Mason for this reason, but not necessarily enough to dump him (presumably especially because all the political capital was being spent defending von Spakovsky). The McCain situation involving the public financing was the straw that broke the camel's back.

This sounds quite plausible to me. But even assuming that's true, then critics are still correct to say that Commissioner Mason was dumped because of the McCain situation, no? At least that was the immediate proximate cause. (Sorry, I'm in the midst of writing a torts book and I can't resist.)

More on FEC and Commissioner Mason

Following up on this post, a reader writes:

"So clearly Commissioner Mason didn't always stray from a party line vote. The idea that he's a Democrat in disguise is ridiculous."

Well, that's true, but the compromise the FEC is based on is that half of the commissioners are chosen by Democrats, and half by Republicans. Not that half are Democrats chosen by Democrats, one a Republican
chosen by Democrats, and two Republicans chosen by Republicans. Attempting to dictate to Republicans who one of the Republican members will be is a clear violation of the compromise. That makes it four Democratic *choices* to two Republican *choices*.

Mind, as a member of a third party, I don't find the compromise to be much of a compromise. But to the extent it is, the Democrats are clearly violating it.

I agree with much of this. A claim that this is simply a Republican prerogative would be more defensible than the claim that Mason is really a closet Democrat. But given the proximity in time to the Sen. McCain controversy, Republicans probably felt some explanation (other than trying to help their candidate) was in order.

"Clinton Evokes Ghosts of Bush v. Gore"

The Politico offers this report.

"April Presidential Reports: Small Donations Continue to Fuel Democrats; McCain Has His Best Month; Clinton's Debts Rise to $19.5 Million

The latest essential report from the Campaign Finance Institute.

"Arizona and Justice Department Reach Settlement on Federal Voter Registration Law Implementation"

Demos has issued this press release.

Design for Democracy Website

Talk about a sensible and non-controversial election administration reform everyone should be behind: improved ballot design. There is much to praise here. Check out the Get Out the Vote designs too.

"Delegate Dilemma"

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

"The Amazing Money Machine"

Joshua Green has this article on Sen. Obama's fundraising in The Atlantic.

No Quorum to Vote FEC Nominees Out of Committee

See here. Here is Sen. Feinstein's opening statement from the hearing that wasn't. UPDATE: Apparently there was a hearing, but there is a new snag. This article in The Hill says that Senate Democrats and President Bush have not reached agreement over how to proceed because of the lack of agreement on a Sixth Commissioner, who will be a Republican. Furthermore, Roll Call is reporting that Democrats are insisting on the return of Commissioner Mason as the Sixth Commissioner.

I was very surprised to read the following in the article:

Reid wanted Republicans to renominate outgoing FEC Commissioner David Mason -- a nonstarter for the Bush administration since Mason has been known to side with the FEC's Democratic members.

One senior administration official said that if the White House had agreed to Reid's proposal, it would amount to an "imbalance on the FEC." Mason, plus the Democrats' three picks, would essentially give Democrats a working majority on the commission, the official said.

Now I have heard from some that Commissioner Mason had made a few votes over his time that have favored the Democrats (and the most recent controversy surrounds his call to investigate whether Sen. McCain improperly pledged participation in the public financing system as a condition for a bank loan). But it is quite an exaggeration to think of Commisioner Mason as equivalent to a Democratic commissioner. Consider a paragraph from Gerry Hebert's blog post of June 11, 2007:

Recently, in the context of audit reports of the Bush-Cheney and Kerry-Edwards 2004 presidential general election campaigns, the Commission split sharply on the legality of an allocation scheme employed by the candidates and their parties to evade the presidential public financing program spending limit and the coordinated party spending limit. In March of this year, Chairman Lenhard, along with Commissioners Weintraub and Walther published a statement[1] arguing that the Bush-Cheney committee received $41 million in excess in-kind contributions from the RNC, violating both the contribution limit and the presidential spending limit. Commissioner Weintraub published an even more strongly worded statement[2] elaborating on the issue. Commissioners von Spakovsky and Mason, however, voted against finding that a violation had occurred and published a statement explaining their position.[3] Without the necessary four votes to find a violation, the Lenhard, Weintraub and Walther could do nothing and the $41 million violation went unpunished. Then in May, the Commission again split with respect to whether the Kerry-Edwards campaign had likewise violated federal law using the same "hybrid ad" scheme that resulted in $11 million in illegal contributions to the presidential ticket. Commissioners Mason and von Spakovsky again published a statement explaining their position.[4]

So clearly Commissioner Mason didn't always stray from a party line vote. The idea that he's a Democrat in disguise is ridiculous.

Sen. McCain Encourages His Supporters to Blog on Daily Kos

This is interesting (via Jonathan Martin.)

"Less than Full Disclosure: the Center for Competitive Politics' Understated Goal in Attacking Ohio's Regulation of Electioneering Communications"

Following up on this post, Bob Bauer has these comments on his blog. Check out the update to his post as well, which reprints an email from CCP explaining that there were two versions of the press release on their website.

"Campaign Finance Lessons, to Date, From the 2008 Presidential Election"

See this extensive post at Democracy 21.

April Fundraising for the Three Presidential Candidates

See here.

Follow Up on Judicial Watch Complaint Against FEC

Yesterday I linked to a Judicial Watch complaint against John McCain about a London fundraiser. That Judicial Watch story is old, not new. Back at the end of April, the McCain campaign told the Hill:

The McCain campaign dismissed the complaint as "completely wrong."

"That's what happens when a group files a complaint without calling the campaign to see if its facts are straight," said McCain spokesman Brian Rogers. "The campaign obviously had an agreement to pay for the space, catering and other costs for the event, and those payments are set to be made in due course. There's just no issue here."

I understand the payments will show up on the May FEC report.

Mason Definitely Out as Possible von Spakovksy Replacement at FEC

So reports ($) BNA: "The White House has indicated that no immediate announcement of a substitute for von Spakovsky was planned. The fact that the White House is examining new FEC candidates indicated that it would not act on a suggestion from Reid to simply substitute a current Republican commissioner, David Mason, for von Spakovsky. Mason previously had been nominated by Bush for reappointment to the FEC, but that nomination was withdrawn early this month. The White House gave no reason for dropping Mason, but it was widely noted that he apparently upset Republicans by publicly questioning the actions of presumptive GOP presidential nominee John McCain (R-Ariz.) with regard to participation in the public campaign financing system."

I'm Glad I'm Not in Ned Foley's Election Law Class!

A nine page (excerpted!) nightmare post Bush v. Gore hypothetical for the final exam. I started sweating just reading it. Ned offers this further analysis of the issues. He raises two questions in the last paragraph. My short answers to those questions are the following:

1. No.

2. Badly.

You can judge for yourself if the essay portion of my election law final exam (I don't release the multiple choice part) is easier or more difficult to answer.

UPDATE: Ned assures me that this was a two-week take home final, rather than an in-class one. I'll come off that ledge now.

Hanging Chads for Fun and Profit

Jacob Soboroff has the details.

"Senate Panel to Approve 3 for FEC , but Republicans Likely to Fight on Floor"

CQ Politics offers this report. See also this Roll Call report ($).

von Spakovsky Nomination Officially Withdrawn by White House

Here.

Center for Competitive Politics Files Suit for Ohio Right to Life to Engage in Anonymously Funded Sham Issue Advocacy

Details here. What's interesting to me is that the press release sent to me by email includes the following information omitted from the press release on the CCP website:

Ohio Right to Life's challenge to the disclosure requirements were not addressed by the Supreme Court in the WRTL case.

"But once an advertisement is deemed to be neither express advocacy, or its functional equivalent, the justifications for forced disclosure disappear," Hoersting explained. "Reporting requirements can have a chilling effect on citizen speech, and at the very least, they impose a complex and time-consuming burden on citizen groups."

In a filing last year with the FEC in connection with the WRTL rulemaking, Richard Briffault and I offered these comments explaining why mandatory disclosure is justified even under WRTL in the case of sham issue ads.

"Judicial Watch Calls on FEC to Investigate McCain Presidential Fundraising Luncheon Held in London"

See here.

"A Reverse Clear Statement Rule?"

Anita Krishnakumar has a really interesting post on Concurring Opinions about the constitutional avoidance doctrine in statutory interpretation and a recent Supreme Court case.

She's been doing some really fine blogging on legislation issues over there.

Ansolabehere and Persily on Voter ID and Voter Perceptions of Fraud

You can now find the final version of their article here in the Harvard Law Review. That same issue of the review has a student note, A Federal Administrative Approach to Redistricting Reform, that is sure to make Chris and Heather cheer and Dan Lowenstein groan.

" New Hampshire Supreme Court Says 'No' to Letting 17-Year-Olds Vote in Primaries"

Richard Winger has the details.

Bauer on McGehee Roll Call Oped on Gutting the FEC

Don't miss this.

"For Campaign Contributions by the Wheelbarrow, the Back Door Is Open"

Jeffrey Birnbaum has written this Washington Post column.

"Bring on the Swift Boats"

Andres Martinez has this post on the Washington Post's "Stumped" blog.

"Campaign Finance Reports Can Be Altered without a Trace"

The Salt Lake City Tribune offers this report.

"No Override of Voter ID Veto Expected"

The Wichita Eagle offers this report, which mistakenly says Sen. Howard Baker served on the Carter-Baker commission.

More von Spakosvksy

He's written this piece on voter id for National Review Online.

Is It a Bribe to Offer a Superdelegate $1 Million Toward a Program Supported by that Delegate in Exchange for a Vote for a Presidential Candidate at the Convention?

We don't know whether the allegation is true. If it is true, Jan Baran says: ""This is not an FEC issue...There are federal and state laws that bar 'vote buying' but I'm not sure they apply in this situation since this involves a convention delegate and not a voter in an election. In short, I don't know whether this is illegal or just hardnosed political horse-trading." Fascinating.

"Anatomy of a Beltway Smear Campaign"

Hans von Spakovsky has written this Wall Street Journal oped. I am not sure if he's referring to this blog in writing "During the past two years, while my nomination to the Federal Election Commission was pending--and before I withdrew last week--friends would call whenever the latest newspaper story or blog post attacking me was planted by political operatives and left-wing advocacy organizations." But I can assure you that no political operatives or left-wing advocacy organizations ever "planted" anything with me. My own part in this story is probably my blog discovery (which I later described in a Slate article) that von Spakvosky had anonymously written a law review article supporting DOJ's voter id decision while a lawyer at DOJ. I think facts like that, rather than any vast left-wing conspiracy, is responsible for his fate.

"As Time Runs Short, Clinton Claims Lead in Popular Vote"

The NY Times offers this news update.

"McCain Tied to Lobbying Industry He Scorns"

NPR offers this report.

McCain-Feingold Did Not Create or Name "527s"

Someone tell
The Economist.

Placing Law Review Articles

As someone who has chosen to stay at a non-elite law school despite some opportunities to move I found this post by Brian Tamanaha to be a nice reminder of the realities of law review placement.

For those in the election law field, there is a peer-reviewed alternative that I think is worth considering. [Disclosure: I co-edit this alternative.]

Election Law Tenure Decisions, Moves, and Visits

Congratulations to the following election-law related tenure grants:

New Luis Fuentes-Rohwer, Indiana, Bloomington
Michael Kang, Emory (and see below)
Ray LaRaja, University of Mass., Amherst
Matt Streb, Northern Illinois University

The following election law people are moving schools or starting in new positions in the next academic year:

Steve Ansolabehere, Harvard
Marvin Krislov, Oberlin College (president)
David Lublin, elected to Chevy Chase Town Council (and keeping position at American)
David Schleicher, George Mason law
Jeff Wice, Hofstra (adjunct) (continuing as adjunct at Touro, but not next year)

The following election law people are visiting for at least part of next year or on leave:

Adam Cox, NYU
Paul Gronke, on leave consulting for Pew/JEHT Make Voting Work
Grant Hayden, Vanderbilt visit
Michael Kang, Harvard
Dan Tokaji, Harvard

[This post will be updated as I am sent more information.]

On the Conflict Policies of the Presidential Candidate

Bob Bauer, Obama's lawyer, sees a loophole in the McCain policy.

McCain staff are rankled by "what they see as the Obama campaign's hypocrisy on the matter of lobbyist influence.">

Committee Vote on Bauerly, McGahn and Hunter Right After Wed. Rules Committee Hearing

So comes word via email. As I expected, this is now moving quickly.

"Sebelius vetoes bill requiring voters to show photo ID"

The Kansas City Star offers this report.

von Spakovsky Tells Roll Call Why He Gave Up Fight Over FEC Nomination and What He'll Do Next

See here ($):

"I'm not a rich guy. I wasn't a rich guy when I moved here and I couldn't keep waiting...The last straw was when my wife brought my son home from the orthodontist and said, 'he needs braces.'"

Meanwhile, Meredith McGehee writes this Roll Call oped calling for the FEC to be "trashed lock, stock and barrel" and replaced with an agency more to her liking. One of the most striking things about the editorial is how she condemns each of the crop of nominees. It is hard to imagine anyone with any kind of real-world experience with clients actually appearing before the agency meeting her litmus test. Would she want a commission consisting only of campaign finance reformers?

"McCain to Rely on Party Money to Match Obama"

The NY Times offers this front-page report.

What is Going On with the Declining Number of Ballot Initiatives This Year?

Check out the chart in this CQ article.

" Can Obama, McCain get by on $84 mil. each?"

Carol Marin has written this Chicago Sun Times column. Anyone who thinks Sen. Obama will opt into public financing in the general election campaign is dreaming.

"Another top McCain official resigns"

The Politico offers this report. The Newsweek story referenced there is here.

"Texas AG fails to unravel large-scale voter-fraud schemes in his two-year campaign"

This must read report first appeared in the Dallas Morning News.

A snippet: "The cases his office pursued largely have involved mail-in ballots. In 18 of the 26 cases, the voters were eligible, votes were properly cast and no vote was changed – but the people who collected the ballots for mailing were prosecuted."

Another snippet: "Eight of the 26 cases involved ineligible voters or manufactured votes, The News' review found. They include a woman who voted for her dead mother, another in which a Starr County man voted twice, and three South Texas women who used false addresses to get voter registration cards for people who did not exist. The most significant cases were against a former Port Lavaca City Council member who lied to a grand jury about registering noncitizens to vote and against a Refugio County commissioner who distributed mail-in ballots to residents to mark in his presence. Both were convicted and imprisoned."

It is not clear to me if any of the cases involve voter impersonation at the polls that a voter id law would possibly prevent.

Two Ballots for Some Vote-by-Mailers in Oregon Primary

No problem, say state election officials.

More on Missouri Voter ID

See here:

A proposed photo ID measure never won time on the Senate floor yesterday. The Senate had been bracing for contentious debate over the measure that would have authorized a ballot item to amend to the Missouri Constitution a photo ID requirement for voters.

Gibbons said there wasn't enough time to piece together the measure. The term-limited Republican leader said he offered the Democratic caucus a chance to craft a bill to address concerns raised about getting the needed documents for a photo ID. "My objective is to have an effective photo ID in place in 2010 that doesn't disenfranchise any lawful voter in the state of Missouri," he said.

More Breaking News: Missouri Legislative Session Ends Without Passage of Constitutional Amendment Establishing Voter Identification Requirements; But Legislature Sends Bill to Governor Removing All Dollar Limits on Campaign Contributions

To me, these results are a mixed bag.

Breaking News: Hans von Spakovsky Withdraws Nomination for FEC Commissioner; What Will This Mean for Commissioner Mason?

Here it comes on a lazy Friday afternoon:

TPM Muckraker has the details. The letter from von Spakovsky is here. More from AP and Roll Call on the President "reluctantly" accepting the withdrawal.

I think this almost certainly breaks the logjam for FEC nominations. I expect McGahn, Hunter, and Bauerly to be quickly confirmed to the FEC. With the committee hearing scheduled for May 21, it is possible this will happen before Memorial Day. Current Commissioner Ellen Weintraub will remain on the commission.

There will also have to be a vote on Steven Walther, who was a recess appointee who will need confirmation. [An earlier version of this post incorrectly left out Walther.] The big question is what happens to Commissioner Mason. I and others have suggested that Commissioner Mason, a Republican on the committee, may have been dropped because he planned to examine whether Sen. McCain violated the rules related to public financing in the primary election. See here. Trevor Potter, speaking for the McCain campaign, declined to take a position on the Mason controversy. It remains to be seen whether Commissioner Mason's position on the FEC will now get new life. I wouldn't bet on it.

"License to Vote"

The Texas Observer offers this report.

"Florida and Michigan Can't Save Clinton"

AP offers this report.

In the Election Law Mailbag

Thomas L. Brunell, Redistricting and Representation: Why Competitive Elections are Bad for America (Routledge)

Stephen Ansolabehere and James M. Snyder, Jr., The End of Inequality: One Person, One Vote and the Transformation of American Politics (Norton)

Benjamin E. Griffiths, ed., America Votes! A Guide to Modern Election Law and Voting Rights (ABA) [Disclsoure: I wrote the book's Foreword]

"A Final Reply to Bauer on the Woes of Issue Advocates"

Steve Hoersting has this post at the Center for Competitive Politics blog.

Strange Bedfellows Dept.

What led James Sample of the Brennan Center to declare: "The sheer audacity of the facts in this case is reflected by the fact that Ted Olson and the Brennan Center are in complete agreement."? See here.

Bauer to FEC Nominee Don McGahn's Defense

See here.

"McCain drops 527-linked consultant"

The Politico offers this interesting report. See also this post from Marc Ambinder.

"West Virginia's Top Judge Loses His Re-election Bid"

The NY Times offers this report.

May 21 Hearing on FEC Nominees

Via email comes word that "The Committee on Rules and Administration will meet in SR-301, on Wednesday, May 21 , 2008, at 2:00 p.m., to receive testimony on the nominations of Cynthia L. Bauerly, Caroline C. Hunter, and Donald F. McGahn to be members of the Federal Election Commission."

"Voter ID questions remain after SCOTUS ruling; Attorneys, scholars expect more litigation after fractured decision"

See this report from the Indiana Lawyer.

Did the California Supreme Court Just Do John McCain an Inadvertent Favor?

Today's 4-3 decision of the California Supreme Court striking down under the California Constitution a California statute limiting "marriage" to opposite-sex couples could help John McCain in the fall. (More coverage of the opinion itself at How Appealing.) The decision is based upon the California Constitution, which can be changed by the voters. And, according to this story in the S.F. Chronicle, it seems very likely an initiative overturning the decision through a constitutional amendment will qualify and appear on the November ballot.

This helps John McCain because those conservative voters may not have come out in great numbers for him, but they will come out now to vote for this amendment, and they are more likely to vote for McCain than for the Democrat once they are already voting. That's not to say that California will go red, but it is to say that the Democratic nominee will have to devote more resources to this very expensive to campaign in state.

The Supreme Court Sleeper Case of the Term?

The Supreme Court this term has already decided a significant case on voter identification, as well as two somewhat less significant decisions on party primaries and judicial elections. It also has a campaign finance case pending, surrounding the "Millionaire's Amendment" to the McCain-Feingold law. But there's another election law case pending, Riley v. Kennedy, that has gotten very little attention but could turn out to be among the most important cases of the year. (The extent of coverage appears limited to this AP report, this analysis and oral argument recap from Scotuswiki, and this pre-argument post on Concurring Opinions by Erica Hashimoto. The oral argument transcript is here.)

The case comes under section 5 of the Voting Rights Act, and the question presented 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." The issue is rather arcane and the oral argument is hard to follow. But I was struck by this statement in the AP story (not the version linked above, but one I could only find on Westlaw) from Pam Karlan, who argued the case for the appellee:

After the hearing, Pamela Karlan, an attorney for the Democrats, said many of the justices seemed to have fundamental questions about the Voting Rights Act.

"We have a court that is very skeptical of the act," Karlan said.

It got me wondering what prompted Pam's comments, and it seems to be that Chief Justice Roberts advanced at argument a novel and potentially game-changing interpretation of section 5 requirements. As that section is currently understood, any time a covered jurisdiction intends to make a change in a voting practice or procedure, it must obtain preclearance from the Department of Justice (or a three-judge-court) before doing so. But Chief Justice Roberts seems to take the view, despite what he characterized as "dicta" from other Supreme Court decisions and acquiescence of Congress in this longstanding interpretation, that the only changes subject to preclearance are changes from the rules that were in effect in November 1964, when the Voting Rights Act was first adopted. Here are some snippets from the transcript:

CHIEF JUSTICE ROBERTS: Why did Alabama have to preclear anything? On November 1st, 1964, this was an appointed position. This is not a change from what was, quote, "in force or effect" on November 1st, 1964.
MS. KARLAN: Well, for one thing, this Court would have to overrule its decisions --
CHIEF JUSTICE ROBERTS: Oh, no, no. Those decisions are all dicta. . .
MS. KARLAN: . . . Now, the other thing is I will say that the Department of Justice regulations on this, which are quite clear, have been in effect since 1987. And in the 2006 -- in the 2006 re-enactment of the Voting Rights Act, if you look at the House report, they talk about Young against Fordice there. And they say "Mississippi's attempt to revive and to resuscitate" and those are the House's words, "to revive or resuscitate" -- the --
CHIEF JUSTICE ROBERTS: I think you're quite right on the DOJ regulations and the House report, but I just don't see how that squares with the statutory language.
MS. KARLAN: Well, Your Honor, if I could just make an observation about section 5 more generally in Allen, and I'll start here. In Allen, itself, this Court recognized that the text of section 5 doesn't provide for private rights of action, and yet it found them.
It recognized that the text of section 14 of the Voting Rights Act suggests that the only place that can be -- that the only place that can litigate section 5 --
CHIEF JUSTICE ROBERTS: So because we've ignored the text in other areas, we should just forget about it here?
MS. KARLAN: No, because that's -- that's the -- those sets of decisions by this Court have been ratified by Congress and have been the longstanding practice under section 5. You should continue that.
CHIEF JUSTICE ROBERTS: I thought that they ratified -- these cases were ratified by Congress, but Congress did not change the language in the statute.
MS. KARLAN: Because it thought that the purpose of section 5 -- if I could spend just one sentence on this -- the purpose of section 5's November 1st language was to prevent a sort of game of Whac-A-Mole in which the States would keep changing the practice. And the idea of that freeze was to hold it in place so that it could be challenged as a constitutional matter before the State switched again. It wasn't to create a safe harbor against attacks on the November 1st practice.

And here's more, with the U.S. government's lawyer as amicus:

CHIEF JUSTICE ROBERTS: Counsel, you talk about force and effect. Of course, the statute says "force or effect on November 1st, 1964." Do you have anything to add to Ms. Karlan's response on my quaint fixation on the language of the statute?
MR. SHANMUGAM: Well, it isn't quaint at all. I would say that I do think that as a textual matter one could perhaps make the argument that where a covered jurisdiction changes its voting practice after the statutory coverage date and then enacts basically a new version of the pre-existing practice, that the new practice could as a formal matter be said to be a new practice. But I want to make two additional points. The first is that the question of whether the statute covers reversion to coverage date practices is really not properly before the Court. Appellant seemingly did not raise it before the district court and it is not –
CHIEF JUSTICE ROBERTS: Well, that can't tie our hands in properly interpreting the statute.
MR. SHANMUGAM: Well, it's not within the scope of the question presented, either. The question presented focuses solely on the question of whether changes precipitated by State court decisions require preclearance. And that's a question that this Court has answered twice in Hathorn and Branch.
The only other thing that I would say is 11 that it has been not only the consistent interpretation of the attorney general, but also the consistent interpretation as far as we are aware of the lower court, that the statute does reach reversions to preexisting practices as well.
CHIEF JUSTICE ROBERTS: I don't see how regardless of how consistent the interpretation is, how can you read 'November 1st, 1964'" to mean anything other than that date?

It would not surprise me to see Justices Scalia, Thomas, and Alito joining on to this new and stingy interpretation of the Voting Rights Act. (I am not sure if Justice Kennedy would go along.) But the Chief Justice has never been a friend of expansive interpretations of the Voting Rights Act (recall his remark about the "sordid business" of "divvying up voters by race" in the LULAC case). If and when the three-judge court decides the direct challenge to the constitutionality of Section 5 in the NAMUDNO case, the case will make it to the Supreme Court where the Chief Justice will be able to show his skepticism yet again.

"Panel probes election phone jamming plot"

AP offers this report.

"Photo ID compromise would delay effects until 2010 "

The latest from Missouri.

"Party's Rules Committee Has a Crucial Role in Clinton's Hopes"

The NY Times offers this report.

"Can a Dead Woman Vote?"

No, says this Slate Explainer. At least in South Dakota.

"Judge Rejects Democrats' McCain Fundraising Lawsuit"

According to the NY Sun, "[i]n a five page ruling today, Judge John Bates said federal law requires a party to file a complaint with the Federal Election Commission and then to wait 120 days before filing a suit." The opinion is here.

"How Will Clinton Resolve Her Campaign Debt?"

NPR offers this report.

"Obama, McCain Aim to Curb '527s'"

The Washington Post offers this report.

"HBO Film About 2000 Recount Draws Protests From Democrats"

The NY Times offers this report. Apparently Jim Baker was allowed to make changes in the script, but Warren Christopher was not even given access to it. Why? "Mr. Strong confirmed that Mr. Christopher offered to review the script but, he said, he decided not to send one. 'I didn't feel comfortable sending it to him because I didn't feel that he was being totally candid in our interview,' Mr. Strong said. 'He wasn't as forthright with me as other people I've interviewed.'" Sounds like a great reason to not even give Mr. Christopher a chance to respond to the controversial script.

"Bush Operative Pushes Voter ID Law"

Jason Leopold has written this article on Thor Hearne. Missouri Republican state representative Stanley Cox, mentioned in the Leopold article, has written this oped on voter id in Missouri for USA Today, responding to this USA Today editorial.

"Reform Allies Defend, Hold Fire on McCain"

The Politico offers this report.

"Connecting Dots from SpeechNow to WRTL III (or Its Functional Equivalent)"

Bob Bauer's latest post.

LULAC Complaint Against Texas Two-Step Now Available

Ed Still has posted it here.

"SMALL DONORS NOT A FACTOR IN HOUSE RACES; DEMOCRATS MAINTAIN FINANCIAL LEAD"

The latest release from the Campaign Finance Institute.

"The Myth of Voter Fraud"

The NY Times offers this editorial, which begins: "Missouri and at least 19 other states are considering passing laws that would force people to prove their citizenship before they can vote. These bills are not a sincere effort to prevent noncitizens from voting; that is a made-up problem. The real aim is to reduce turnout by eligible voters. Republicans seem to think that laws of this kind will help them win elections, but burdensome rules like these -- and others cropping up around the country -- pose a serious threat to democracy and should be stopped."

I have not focused much on the noncitizen issue and initial voter registration (as opposed to the voter impersonation problem allegedly targeted by requiring voter id at the polls). But my sense is that there is more of a real problem with the former than the latter. This is not necessarily a problem caused by intentional fraud as much as by lack of knowledge of non-citizens who mistakenly register and lack of independent verification of citizenship by elections officials. I hope to write more about this in coming days, as I go back to look at the evidence on this score. That's not to say that the Missouri law is necessarily a good one; only that non-citizen voting is not a wholly made up problem the way voter impersonation is. I look forward to hearing from others about the evidence on this question.

Missouri Voter ID Bill Moves Forward

See here and here.

"Legal but Controversial, It Helped Get Out the Vote"

The NY Times offers this report on payments of "street money" in Texas and Ohio by Sen. Clinton.

"Reid Presses Bush to Help End FEC Standoff"

The Hill offers this report.

Is Effective Redistricting Impossible Because of Voluntary Segregation of Voters by Political Preferences?

See here and here.

LULAC Sues Over Texas Primary/Caucus "Two-Step"

This AP article makes it sound that the suit raises both an argument that the system needed preclearance under Section 5 of the VRA and that it violates section 2. But I haven't seen the complaint itself.

Bauer on Major Purpose, Leake, Speech Now, and the Center for Competitive Politics

Read this interesting post.

"Clinton Deadline Looms for Recouping $11 Million Personal Loan "

Bloomberg offers this report. The Washington Post offers Clinton Team Acknowledges $20 Million Debt.

More Women's Voices, Women Vote Controversy

Josh Marshall notes this controversy from West Virginia.

"Disenfranchised Over There"

Hans von Spakovksy and Roman Buhler have written this article for the Weekly Standard. It has the subhead: "Let's Defend the Voting Rights of Those Who Defend Us."

Alan Wolfe on the Democratic Party's Nomination Rules

Here, in the Washington Post's Outlook.

"Voter ID Battle Shifts to Proof of Citizenship"

The NY Times offers this front-page report, which begins: "The battle over voting rights will expand this week as lawmakers in Missouri are expected to support a proposed constitutional amendment to enable election officials to require proof of citizenship from anyone registering to vote."

This is an important story, but there's a detail here that shouldn't be lost on those who have been following the election administration wars. Thor Hearne's American Center for Voting Rights is back, with no explanation as to how it can return as mysteriously as it disappeared.

UPDATE: Apparently the reference to ACVR was out-of-date. The reference has been removed from the story, with Hearne now described simply as:"a lawyer from Missouri who has been a strong advocate for voter ID laws."

Sen. McCain the Supreme Court, and the Future Constitutionality of McCain-Feingold

David Nather, writing for CQ Weekly, observes: "When he promised last week that as president he'd nominate only strict constructionists to the Supreme Court, there was one subject John McCain didn't mention in his review of the court's trends: the campaign finance overhaul he pushed through Congress six years ago. That's probably just as well, because if the Arizona senator has the opportunity to pick people like Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.-- he mentioned both in a speech at Wake Forest University as models for his own nominees -- he probably could say goodbye to the law he wrote with Democratic Sen. Russ Feingold of Wisconsin."

Justice Stevens Tacking Back to the Center?

So suggests this AP report mentioning the Crawford case.

Koppelman and Bernstein on Bush v. Gore

At Balkinization, Andrew Koppelman writes On Not Getting Over it, which begins: "A few days ago, Justice Antonin Scalia, asked again about the charge of partisanship in the Supreme Court's decision in Bush v. Gore to hand the presidency to George W. Bush, declared, 'Get over it. It's so old by now.' I'd like to examine the logic of this epigram, which has become something of a mantra among the decision's defenders."

At the Volokh Conspiracy, David Bernstein responds. Interesting comments there too, including one by Rick Pildes.

"Voter ID and Election Fraud: A Non-Fix to a Non-Problem?"

Jack Chin has this post at Prawfsblawg.

"Lawyers: Gore's Pelosi Ad May Violate Election Law"

This interesting article appears in the NY Sun. I spoke to this reporter about this article, but told him I don't know enough about the coordinated expenditure rules to comment on that aspect of it. It does seem to me that to the extent this is run on broadcast television with 60 days of the general election in Speaker Pelosi's district, BCRA's Electioneering Communications disclosure rules would kick in.

No Explanation Given to Commissioner Mason for Being Thrown Under the Bus

CQ Politics reports that FEC Commissioner Mason "said the White House personnel office called him 'the day they withdrew the nomination to inform me about that. And that was a pretty routine process, just a courtesy call to me. And they did not say anything substantive.'"

Trevor Potter's Comments on Election Law Listserv About the Dumping of Commissioner Mason Appear in Tomorrow's NY Times

The Times article is here. Trevor's listserv comments were reposted on this blog here. And it started with the question I posed to Trevor at the beginning of that post.

"Senators Feinstein and Kerry Express Concerns About Apparent Reversal in Department of Veterans' Affairs Policy in Providing Access to Voter Registration for Veterans"

See this press release and this AlterNet story.

Post-Crawford Movement on Voter ID in the States

There's a nice summary paragraph in "Election Reform News This Week" in the new Electionline weekly. Note that the beginning of the newsletter provides details on how current and new subscribers can sign up under a new procedure to receive the weekly newsletter via email.

"McCain Lawyer: FEC Flap 'Manufactured'"

The Politico offers this report.

"Why Clinton Stands to Lose Millions"

This interesting report in U.S. News notes a provision in McCain-Feingold that will be very important if Sen. Clinton wishes to recoup her campaign loan. See also this Explainer column from Slate.

AEI-Brookings Task Force Report on EAC Voting Recommendations

See here.

"Did Rush Limbaugh Tilt the Vote in Indiana?"

The Washington Post offers this report.

More Commentary on Crawford

Vik Amar has written this Findlaw piece. Key quote: "It doesn't take a genius to see that relegating plaintiffs to 'as applied' challenges in these kinds of cases doesn't really leave them with much."

Tokaji on Elmendorf on Crawford on Harper.

John Fund on the nun controversy.

Steve Hoersting on Leake and SpeechNow.org

See here.

At Least a Bit of Confusion over Indiana's "Open" Primary

Ed Still has the details.

"Clinton-Obama cash gap looms large"

Jeanne Cummings has written this article for The Politico.

"Florida 2006: Can Statistics Tell Us Who Won Congressional District 13?"

Alrene Ash and John Lamperti have written this article for Chance, a statistics magazine. The pdf includes responses by Joseph Hall and Walter Mebane.

"Presidential Public Funding, Extreme Makeover Edition"

Laura MacCleery and Andrew Stengel have written this post at The Huffington Post.

"Questions abound over late vote tallies from Lake County"

AP offers this report.

Same as It Ever Was Dept.

The Politico:

Senate Majority Leader Mitch McConnell (R-Ky.), said he would not allow Democrats a separate vote on each nominee and instead wanted the FEC nominees voted on as a package, which would ensure approval of the most controversial GOP pick, Hans von Spakovsky. Democrats have made it clear that von Spakovsky would not pass the Senate while the other four nominees would be approved.

But more mainstream news outlets are picking up the Mason angle.

Campaign Legal Center Objects to Throwing Commissioner Mason Overboard

See here. So Bob Bauer, Fred Wertheimer, Gerry Hebert, and I all agree. What about Trevor Potter, Sen. McCain's lawyer, and Brad Smith? I'd be interested to know.
UPDATE: Trevor Potter responded to my query on the election law listserv, and with his permission, I post his response below:

Rick Hasen's last post asked "Trevor Potter, Sen. McCain's lawyer" to respond to the series of recent statements about the President"s FEC nominations.

The McCain campaign has said for some time that it would like to see the current stalemate resolved as soon as possible in order to get the FEC functioning again. Sen McCain has repeatedly stated this position publicly, and I of course agree with statements made by many others that this is an vital public policy objective, as well as directly important to the Presidential candidates. For this reason, the several recent letters from Sen. Reid to the White House proposing a resolution to the logjam, and the White House announcement yesterday that it would send new nominees to the Senate are welcome.

However, I have not commented on the recommendations by Sen. Reid of specific persons for FEC seats, and on the White House decision to nominate specific individuals, and not to nominate others, for two reasons. First, as the the McCain campaign has noted to the press today, these are the President's appointments, and not Sen. McCain's. Senator McCain's only role was to urge all parties to resolve the deadlock. Second, it has seemed inappropriate for me to comment on the specific composition of the FEC since it is well-known that matters involving the McCain campaign are before the Commission, and thus before whoever is ultimately confirmed.

However, now that Rick has publicly prodded me, I expect continued silence would be taken as an unwillingness to engage, with adverse conclusions drawn. So, let me say that I think the criticism of the President's decision not to re-appoint Dave Mason rests on a faulty assumption. Critics write as if Commissioner Mason has already determined that Sen. McCain has violated federal campaign finance law, and that he would so find if only he is on the Commission when a quorum is restored. I do not believe this is the case. Commissioner Mason wrote the campaign in February to ask for additional information concerning Sen. McCain's withdrawal from the public funding system, and it was provided to him in full. Commissioner Mason did not state that the McCain campaign acted improperly in any way: he stated that he believed the FEC had to vote on Sen. McCain's withdrawal from the primary funding system, while the campaign's lawyers do not think such a vote is required. The McCain campaign believes that Commissioner Mason's questions have been answered satisfactorily, and that if he is on the Commission when a quorum is restored he will agree that Sen. McCain's withdrawal from the system was proper. Accordingly, given the lack of evidence that Commissioner Mason thinks otherwise, the controversy about the White House decision to nominate someone else for the Mason seat seems to be a manufactured one.

From a McCain campaign perspective, the only other thing I will say now is that I hope the Senate acts quickly to vote on these nominations, and if Hans von Spakovsky does not have the votes that a replacement is found rapidly so that the election cycle may finally have the benefit of a fully functioning FEC.

Trevor Potter

My response to Trevor's "faulty assumption" point is this: I think the assumption is that Mason (as Trevor would, if he were still on the commission) would look at this question fairly, and not just in the interest of his political party. I am less confident about some of the nominated commissioners.

Still more: Adam Bonin weighs in at DailyKos and Bob Bauer responds to Trevor.

How Do We Know How Much the Indiana Voter ID Law Deterred Voting?

Via Jonathan Adler comes this Washington Post blog posting suggesting that the Indiana voter ID law did not cause many problems (nuns and students aside) at the polling places.

That may be true, but it doesn't prove much about the deterrent effect of the ID. That is, if a would-be voter does not have a valid id the voter has learned through the state's "extensive education" efforts, that the voter need not bother to show up to vote. What would be the point, unless the voter was indigent or had a religious objection, and was willing to make a second trip to the county seat within 10 days to have that vote count.

"Ghosts of Bush v. Gore loom before state high court"

This post appears at a Miami Herald blog. Thanks to Dan Smith for the pointer.

New Names Unlikely to Break FEC Deadlock

So reports NPR. See also Today's Must Read column at Talking Points Memo.

"There's Value in Voter ID Requirement--If It's Done Properly"

Norm Ornstein has written this Roll Call oped (free access). Norm concludes:

I do not think, in principle, that requiring a photo ID is evil or onerous. An official photo ID can protect voters against charges that they are ineligible to vote. I agree with civil rights activist Andrew Young that a photo ID would be a huge help to poor people who are often victimized by huge fees they are charged to cash paychecks because they lack any such identification.

But there are certain clear principles that need to be applied. Any such ID has to be offered for free--including no-cost access to whatever support documents are required. In a free society, no one should have to pay to vote, and there should not be any unequal burden on those citizens who want to vote. Not only should the ID be free, but it must be readily accessible--in multiple places convenient to the poor and elderly, and through mobile vans to reach those who can't get out easily to the fixed sites.

With these conditions, a voter ID is not an undue burden. But to get to that point requires two things: federal guidelines for the states, under Congress' constitutional power to regulate federal elections, and federal money to make the system work for all. This issue is significant and controversial enough that it ought to be on Congress' agenda this year. But Congress' track record on election reform this year suggests that the chance of that happening is zero.

"Sir Elton, the FEC, and You"

Eric Wang has written this column for The Hill.

Throwing FEC Commissioner Mason Under the Bus to Help Senator McCain?

As a political junkie, I've been focused on the close race in Indiana tonight, but another important political story, perhaps not coincidentally, dropped tonight: President Bush has made a move to break the impasse over FEC nominations. But rather than jettison the controversial nominee to the FEC, Hans von Spakovsky, which would surely break the impasse, the President has dropped Commissioner David Mason, the Republican member on the now two-member FEC. The new Republican nominees are Don McGahn and Carolyn Hunter, who is currently a commissioner on the U.S. Election Assistance Commission.

What's going on? I don't always agree with Fred Wertheimer of Democracy 21, but this time I agree entirely with his insight: "The only apparent reason for President Bush to drop Commissioner David Mason at this stage, an FEC candidate he had twice proposed for the Commission, is to prevent him from casting an adverse vote against Senator McCain on important enforcement questions pending at the Commission. The questions deal with Senator McCain’s request to withdraw from the presidential primary public financing system and the consequences of a loan the McCain campaign took out and the collateral provided for the loan."

For Democracy 21 to be coming to Commissioner Mason's defense is extraordinary; Mason is no supporter of reform. But the other FEC nominees are going to be much more likely to tow the Republican party line on the commission. Commissioner Hunter has been one of more partisan members of the EAC, and likely will continue in that direction if confirmed to the FEC.

This move could well break the impasse over the FEC, but maybe not. Note that a vote on von Spakovsky would apparently be paired with a vote for Steven Walther, who is close with Senator Reid. If Sen. McConnell insists on a vote for the two of them as a package, it might not happen.

My guess now is that Republicans ultimately allow separate votes. They need the FEC to approve Sen. McCain's expected request for public financing in the general election portion of the campaign. They need that more than the Democrats now need a functioning FEC.
UPDATE: Bob Bauer weighs in.

"The Effect of the Carter-Baker Commission on the Supreme Court"

Heather Gerken responds on shadow institutions and Carter-Baker.

"FEC stalemate may be over with new nominees"

The Politico offers this report. Not sure yet what to make of this.

"Indiana nuns lacking ID denied at poll by fellow sister"

AP offers this report.

"Nunez Introduces Comprehensive Redistricting/Term Limits/Contribution Ban Proposal"

The following press release arrived via email:

Assembly Speaker Fabian Nunez (D-Los Angeles) today introduced a sweeping proposal to change the way the state's political boundaries are drawn coupled with a revision in the state term limits law and a proposal to ban political contributions during the budget season.

"It's time for real reform to make the legislature more efficient and effective," said Speaker Nunez. "This proposal is workable, has bipartisan support, and will ensure that our Legislature continues to be diverse and represent all Californians."

Speaker Nunez's proposal includes an independent 17-person "hybrid" redistricting commission. No legislators would serve on the commission, and it excludes anyone who has recently run or been elected to state office. Political party officers, lobbyists, and employees of the Legislature, Congress, and other offices also would be banned from serving.

Fact sheets on the Speaker's proposals, as well as a document highlighting the Speakership of Speaker Nunez, are attached.

Unlike other proposals, the Nunez proposal has strong protections to ensure diversity during all steps of process, including selection of the panel that screens commissioners, the nominees, and legislative selections to the commission. Most importantly, it puts compliance with the Voting Rights Act and respecting communities of interest among its top criteria.

The Nunez proposal also has the strongest transparency and public input provisions of any redistricting plan. The final redistricting plan also would be subject to referendum.

Congressional district boundaries will still be drawn by the Legislature, but the process would be bound by many of the same rules that apply to the commission.

The term limits provision would reduce the maximum amount of time of service in the legislature from 14 years to 12 years. It would allow a person to serve all their time in one house. The provisions included in Prop 93, which "grandfathered" several legislators, have been removed; the proposal has a transition period that allows sitting members of the legislature to serve no more than the total number of years permitted under current law.

The Nunez proposal also would prohibit campaign contributions to legislators and the Governor from May 15th until the budget is enacted. May 15 is the typical time for the release of the May Budget Revision.



Posted by Rick Hasen at 12:35 PM

Crossover Voters in Indiana

The latest update from the Indianapolis Star shows "hardcore" Republicans turning out in droves to vote in the Democratic primary.

Assuming this is perfectly acceptable to Democrats, isn't it time for Indiana to repeal its quirky challenge law, under which some of the voters in the Indianapolis Star story have just admitted to breaking the law?

"Court Hears Appeal of Campaign Finance Rules"

CQ offers this report on what must be Shays v. FEC XII.

"GOP Seeks Order to Primary Chaos"

The Politico offers this report on last week's Kennedy School conference.

"Missed Opportunity ID'd"

Bruce Fein has written this very interesting oped in the Washington Times.

More on Persily on the Renewed VRA

There are more responses to Nate's piece on VRA renewal. Here's one by Joaquin Avila and one by Epstein and O'Halloran. Nate also has written a response to Rick Pildes's must read comment on Nate's original article. Looking forward to reading these.

"Judicial Review of Electoral Mechanics After Crawford"

I've been anxiously awaiting this analysis from Chris Elmendorf. Very interesting indeed.

Bauer on Gerken, Foley, Amicus Courts and Carter-Baker

Here. More Gerken here.

Erwin Chemerinsky on the Crawford Decision

See this editorial in the News and Observer newspaper (North Carolina).

Scrap the Superdelegate System Next Time Around?

Josh Marshall says probably [corrected link]. I've written this piece for the Northwestern University Law Review Colloquy on whether Congress itself could abolish superdelegates if the Democratic Party does not do so on its own.

Creighton LR Symposium on Election Law

View the cover here.

"Out of the Shadows: Private Redistricting Plans Can Help Overcome Lawmakers' Partisanship"

Heather Gerken has written this piece for Legal Times. I'd be interested to hear from Heather if she believes that the Carter-Baker commission played this kind of "shadow" role for election administration reform, and if not, how do we ensure that shadow groups are fairly composed and make good decisions.

UPDATE: Heather Gerken responds to my query:

Great question, Rick. In my view, the prominent role that the Carter-Baker Commission played in the Supreme Court's voter i.d. decision offers two important lessons about shadow institutions. First, it makes clear just how powerful the decision of a shadow commission can be. The Justices were plainly on the hunt for a neutral metric to evaluate the Indiana law. In the eyes of Justices Stevens and Breyer, at least, the Carter-Baker Commission offered just such a metric, and they therefore deferred to it. This is precisely the dynamic I would expect should Ned Foley's amicus court or my shadow districting commissions be created. People need a baseline to evaluate a decision, and a shadow institution provides it.

Second, the Carter-Baker Commission confirms how important it is for shadow institutions to be composed of nonpartisan experts. (I know, of course, that no one is truly "nonpartisan," but surely most would concede that we're dealing with a sliding scale here). Carter and Baker are not experts, nor are they politically neutral. The position the Commission took on voter i.d. is exactly what one would expect from a bipartisan decisionmaking body -- an obviously political compromise that lies roughly in the middle of the positions that the political parties have taken on this issue. While I would expect better from a truly nonpartisan body of experts, I will say this. For all if its flaws, the Carter-Baker Commission's compromise was still superior to what the ruthlessly partisan Indiana legislature passed, a fact that Justices Souter and Breyer used to great effect in their dissents.

"How Hard Should It Be to Vote?"

The NY Times offers these letters to the editor.

"Clinton Campaign Considering Nuclear Option to Overtake Delegate Lead"

Tom Edsall has written this must-read report at the Huffington Post.

"ID law could depress black turnout in Ind."

The Politico offers this report.

"Why Voter ID"

Why Tuesday has this video post (which includes an interview with me) on the Crawford decision. It is also posted at NPR's Soapbox Sunday. UPDATE: Here is an excerpt on NPR's Weekend Edition.

"Republicans Crossing Over to Vote in Democratic Contests"

The NY Times offers this report. The article discusses the "Limbaugh factor" but does not note the quirky Indiana election law that allows some of these Republican voters to be challenged in Indiana on Tuesday.

Amitai Etzioni on the Crawford Decision

See here.

"Tell us your voter fraud story at voterfraud@foxnews.com"

No kidding.

"Hey, What About the 24th?"

Bruce Ackerman and Jennifer Nou have written this article for Slate. It begins: "Americans have long fought hard to protect the right to vote and a generation ago emphatically rejected the idea of paying for the ballot. As the civil rights revolution reached its peak, Congress and the states in 1964 enacted the 24th Amendment, forbidding any 'poll-tax or other tax' in federal elections. Yet, remarkably enough, this basic text went unmentioned by the Supreme Court when it upheld Indiana's photo-ID law this week." And it is not as though the Court was unaware of the 24th Amendment argument.

"Group with Clinton Ties Behind Dubious Robocalls"

NPR offers this very interesting report.

Symposium on "No Strings Attached?: The First Amendment and Tax-Exempt Organizations"

It is in the latest issue of the First Amendment Law Review. Unfortunately, the articles themselves are not on line.

"Small Donors Increase Impact"

USA Today offers this report.

"Lawmakers Seek Same-Day Registration Law"

AP offers this report.

Hawaii Passes National Popular Vote

Rob Richie has the details.

"McCain's Birth Abroad Stirs Legal Debate"

The Washington Post offers this report.

Bob Bauer on the Fourth Circuit Campaign Finance Decisions

See here.

"The Inestimable Popular Vote Estimates"

The Columbia Journalism Review offers this interesting report.

"Voting Rights Are Too Important to Leave to the States"

Adam Cohen has written this Editorial Observer column for the NY Times. Most notable among Adam's suggestions for federal legislation: "The patchwork of state ID laws should be replaced by a single standard that allows people to present any of an array of identification, including college IDs, and permits voters to sign an affidavit if they do not have ID." [Disclosure: I had a conversation with Adam about some of the ideas in this column.]

"Senators Feinstein and Kerry Commend Apparent Change in Department of Veterans' Affairs Policy in Providing Access to Voter Registration for Veterans"

See this press release. UPDATE: See also this report by Steven Rosenfeld, who has been pushing this story for months.

Fourth Circuit Decides Two Important Campaign Finance Cases, Raising Issues that Could Get En Banc or Supreme Court Attention

Today the Fourth Circuit decided two important campaign finance cases, both confusingly with the same name. I discuss the most important aspect of these decisions at the end of this post: the court has struck down contribution limits on independent expenditure committees, an issue that is surely headed to the Supreme Court either in this case or in another case, such as the SpeechNow.org case.

The judicial elections case. A 4th Circuit panel today in North Carolina Right to Life v. Leake unanimously upheld three challenged provisions of a North Carolina law establishing public financing for appellate judicial elections. The first two rulings strike me as correct under current law and unsurprising. The court rejected any argument that the voluntary public financing program is coercive or unconstitutional because it provides matching funds. Second, the court rejected a challenge to the disclosure requirements of the law, including those that apply to non-participating candidates.

The controversial part of the opinion, at least in my view, is the court's decision to uphold a complete ban on campaign contributions during the last 21 days of the election. The ban is narrow: it applies only when a nonparticipating candidate faces a participating candidate, and where the additional contributions would exceed the trigger for matching funds. The court says here that strict scrutiny does not apply, relying on McConnell. But it seems to me that there's a decent argument that a total ban on contributions triggers, if not strict scrutiny, a higher kind of scrutiny than a law that limits just the amount of such contributions. Someone might not pay attention to an election until the last three weeks, and this law prevents that person from even making the symbolic act of contributing a small, non-corrupting amount to a candidate. That interest was recognized in Buckley as the most important, even more important than the interest in giving a lot of money to a candidate.

A narrow petition for rehearing en banc or cert petition could potentially get someone's attention on this point.

The Political Committees case. The second case, decided 2-1 is also named North Carolina Right to Life v. Leake. In this case, the majority first struck down North Carolina's definition of political committee as inconsistent with WRTL II because it extended beyond express advocacy and the "functional equivalent of express advocacy." It also held the the definition was so full of constitutional infirmities that the law could not be upheld facially and then attacked through as applied challenges (as occurred with BCRA). The court then held that North Carolina's definition of political committees to include an "a major purpose test" (as opposed to a "the" major purpose test) unconstitutionally burdened the right of political association.

Most importantly, the majority strikes down contribution limits to independent expenditure committees as not justified by an interest in preventing corruption. As I've said many times, the argument is that if George Soros has the right to spend unlimited sums supporting or opposing candidates for office, he should have a right to give unlimited contributions with others to a group that engages in the same independent activity. This is an issue the Supreme Court has not squarely addressed (outside a possible reference in a concurrence in a 1978 case and an oblique footnote in the McConnell case), and it is the major unanswered question in campaign finance regulation. It is the issue at the heart of the SpeechNow case. This case may now leapfrog over SpeechNow to become the case in which the Roberts Court takes on the issue (and readers of my blog will know what I think is likely to happen to this provision in that Court). Indeed, Jim Bopp, winning in this case, might not oppose a writ of certiorari on this issue, in order to get a Supreme Court stamp of approval on this very anti-regulatory majority opinion.

The majority opinion could have been written by Brad Smith, when Judge Wilkinson declares on pdf 33: "For the regulator's hand, once loosed, is not easily leashed. The Code of Federal Regulations, or its state equivalent, is no small thing. It is no unfounded fear that one day the regulation of elections may resemble the Internal Revenue Code, and that impossible complexity may take root in the very area where freedom from intrusive governmental oversight should matter most. For while appropriate regulation may serve good and useful purposes in many areas, the Constitution makes clear that excessive regulation of political speech is suspect."

The dissent is equally impassioned. It makes a number of important arguments over how broadly WRTL should be read and how much deference to give to the Legislature. A few years ago, I would have said that the dissent's position is the one the Supreme Court would have embraced. Not any more.

More Crawford News and Commentary

Justin Levitt searches for a silver lining (wearing his most rose-colored glasses, in my opinion); see also Justin's posts here and here)

An alternative newspaper in Indianapolis finds someone who might make a good as applied plaintiff.

Doug Chapin has some very sage thoughts in the new Electionline weekly, but it won't be posted at Electionline.org until tomorrow.

See also interesting blog posts by Frank Pasquale, Bill McGeveran. Howard Wasserman, and Steve Bainbridge. A reader sent me a link to Bainbridge's post, which takes on Marty Lederman and my claim about the lack of evidence of the kind of voter fraud that an id law would prevent. My amicus brief in the case (and better yet, the Brennan Center this Brennan Center brief) looks at the evidence closely. The conclusion: there's been plenty of voter fraud in American history, and much of it certainly predates the first Daley era. In the modern era, voter fraud tends to come in three varieties: absentee ballot fraud, fraud committed by election officials, and voter registration fraud (which it turns out does not lead to votes cast by fictitious people). Voter id at the polling place does nothing to prevent these kinds of fraud.

"FL's Voter Registration Law Halted Until July 2008"

The Brennan Center has issued this press release, the upshot of which is that "groups and individuals who conduct voter registration drives in Florida can proceed with their voter registration activities without fear of being fined under the law, until at least early July 2008."

"Elections Canada Vendetta"

See this opinion piece. I haven't followed the controversy closely enough to have an opinion on whether the excoriation of Elections Canada here is fair. But I can say that it is sad, particularly when I've pointed to the agency as one of the models for nonpartisan, fair election administration.

von Spakovsky Update

More evidence Republicans are ready to give up on von Spakovsky: "The White House and Senate Republicans have hinted for the first time that they may be willing to back off their insistence on approval of a controversial Federal Election Commission nominee at the center of a confirmation battle that has crippled the FEC."

Gerry Hebert continues his case against von Spakovsky.

"Clinton supporters fund anti-Obama ads in Indiana"

The LA Times offers this report.