Here We Go Again

NY Times:

A mere 65 votes separated the two candidates late Tuesday in a Congressional contest in upstate New York that received national attention and was widely seen as a referendum on the Obama administration's economic recovery efforts.

With all precincts reporting, the Democrat, Scott Murphy, a 39-year-old venture capitalist, led 77,344 to 77,279 over his Republican rival, Assemblyman James N. Tedisco, 58, for the seat vacated by Senator Kirsten E. Gillibrand, a Democrat. The turnout was surprisingly strong for a special election.

But 10,055 absentee ballots were issued -- and 5,907 received so far, state election officials said -- meaning the election cannot be decided until the paper ballots are counted. Moreover, it is likely that the count may not begin until at least April 6, said Bob Brehm, a spokesman for the State Board of Elections.

"Public Interest Groups Decry Obama's Strict Lobbying Rules"

The Washington Post offers this report.

"A Split At Justice On D.C. Vote Bill; Holder Overrode Ruling That Measure Is Unconstitutional"

The Washington Post offers this very interesting report. I've said the question is debatable enough that members of Congress can vote for the measure without violating their oath to uphold the Constitution, but that the measure would have a tough time in the courts.

"Conyers Weighing Probe of ACORN"

The Washington Times offers this report.

"Senate recount trial: Judges' ruling is boon to Franken"

The Star-Tribune offers this report about this ruling from the three-judge court. More analysis from MinnPost (quoting Ned Foley extensively) and Ned's own analysis.

"Q and A on Citizens United v. Federal Election Commission Oral Argument With Richard L. Hasen"

The ABA Preview of Supreme Court Cases has posted this Q & A on Citizens United.

"John McCain, Negative About Presidential Public Financing"

Bob Bauer comments.

New Articles Dept.

Philip Peisch has written a quite good student note, Procurement and the Polls: How Sharing Responsibility for Acquiring Voting Machines Can Improve and Restore Confidence in American Voting Systems for the Georgetown Law Journal. It offers a nuanced defense of election administration decentralized authority, something you don't see all the time.

Josh Douglas has posted The Significance of the Shift toward As-Applied Challenges in Election Law (forthcoming, Hofstra Law Review) on SSRN. I read this one too in draft. There's a lot of interesting stuff in here, but I think it is too early yet to evaluate the effect of Crawford and the Washington State Grange cases on the lower courts.

Lochner, Dorie Apollonio and Rhett Tatum have written Wheat from Chaff: Third Party Monitoring and FEC Enforcement Actions, which just won the best article prize for Regulation and Governance journal.

Off to Cal Western

I'll be speaking tomorrow down in San Diego as the last speaker in this series on Law & Democracy. I'll be presenting The Democracy Canon, 62 Stanford Law Rev. (forthcoming 2009).

Regular blogging will resume Wednesday.

Does the First Amendment Require a Secret Ballot?

That's the dubious claim advanced in this WSJ oped by David Rivkin and Lee Casey.

"Break the Link Between Earmarks, Contributions"

Meredith McGehee has written this Roll Call oped.

When Will Coleman-Franken End?

Politico explores some of the scenarios.

Beth Garrett to Obama Administration

Another election law specialist gets chosen. Beth has been nominated as Assistant Secretary of the Treasury for Tax Policy. Congratulations Beth!

"Our Elections Run Well. (Don't They?)

Heather Gerken has written this commentary for the Star Tribune.

Interesting Stuff in the Latest Issue of the Harvard Journal on Legislation

You will find here links to Anita Krishnakumar's article on legislatures and representation reinforcement, as well as an election law symposium featuring articles by Mark Tushnet (introduction), Heather S. Heidelbaugh, Logan S. Fisher & James D. Miller (on poll watcher statutes), and Laughlin McDonald (on partisan gerrymandering a judicially manageable standards).

"Registrar Thriller Plays Out in Lawsuit"

The Los Angeles Daily News offers this report. A snippet: "Three high-level managers who were forced out of their jobs under former Registrar-Recorder/County Clerk Conny McCormack claim she engaged in a range of misconduct from wrongful termination to race and age discrimination to attempted insurance fraud. McCormack, in turn, attacked the suit as an effort to embarrass her during an election and force her out of office so the managers could get promoted and earn higher salaries. "

Bauer on the Citizens United Oral Argument

This is worth reading.

"After Initial Successes, Electoral College Foes Set Sights on Higher Peaks"

The Wall Street Journal offers this report.

"Obama order worries speech groups"

Politico offers this report.

"Republican seeks delay on Texas voter ID plan"

AP offers this report.

Want to Learn More about the Northwest Austin Municipal Utility District No. 1, and Why The District Wants to Overturn the Crown Jewel of the Voting Rights Act?

The don't miss Jess Bravin's very interesting piece in today's Wall Street Journal.

President Obama to Increase DOJ Civil Rights Enforcement

So reports National Journal.

"Political Parties See Dramatic Decline in Fundraising"

The Washington Post offers this report.

"Military, Minority Voter Issues Still Need Attention"

CQ Politics offers this report.

AEI Pre-Oral Argument Forum on NAMUDNO

Details here.

"Visualizing the Campaign Contributions to the 110th Congress; U.S. Senate TARP Edition"

Check this out.

Better than "Welfare for Politicians" Phrase?

BNA Offers New Public Financing Legislation Delayed; McConnell Blasts Idea as Political 'Bailouts' ($).

Issacharoff and Miller on "Democracy and Electoral Processes"

Sam Issacharoff and Laura Miller have posted this draft on SSRN (forthcoming, Research Handbook on Law and Public Choice). Here is the abstract:

As the law governing the political arena transitioned from first-order participation concerns to the integrity of the democratic process itself, legal scholarship looked in part to political science and public choice theory for guidance in structuring the oversight of the political process. This chapter provides a survey of the developments in the public choice literature on electoral processes and describes how those insights have been incorporated into the law of democracy. After providing a brief review of the public choice literature in this area as background, this chapter traces the emergence of a distinct approach in law, one drawing more from Joseph Schumpeter and public choice models of political competition, than from classic constructs of equal protection. The issues of campaign finance, gerrymandering, and the role of political parties provide case studies in how legal scholarship has adopted institutional approaches to politics. Finally, emerging areas in this field of law are described, particularly as concerns the institutional dimensions of the political process. This chapter will be included in an edited volume on Public Choice and Public Law, edited by Dan Farber and Anne Joseph O'Connell and published by Edward Elgar.

Still More NAMUDNO Amicus Briefs

John Lewis

Howard School of Law Civil Rights Clinic

Navajo Nation

Asian-American Justice Center

American Bar Association

Alaska Native Voters and Tribes.

"Time to Revive Puerto Rican Voting Rights"

Katherine Culliton-Gonzalez has written this article for the Berkeley La Raza Law Journal (republished with permission).

"New Presidential Guidance Restricts Lobbyist Communications Regarding Stimulus Funds"

A new Covington E-alert.

"E-Voting: Something Broken in Need of Something New"

Danielle Citron has this post at Concurring Opinions.

The Misguided Effort to Explain Obama to the Court--or--Why Obama Really Matters and What the Court Should Do About It

Here is a guest post from Ellen Katz:

On April 29, the Supreme Court will hear argument on whether Section 5 of the Voting Rights Act remains constitutionally justified. The question has long been anticipated and many people, myself included, have written on the issue. But while most of the arguments being presented to the Court are familiar ones, a remarkable new claim has emerged in the briefs and commentary surrounding the case: Barack Obama's election as President of the United States is repeatedly presented as an event that critically informs the constitutional validity of the VRA.

Opponents of the Section 5 preclearance regime are urging the Court to view Obama's election as proof the requirement is obsolete. The Appellant's opening brief, Georgia Governor Sonny Perdue's amicus brief, commentary on the case by Abigail and Stephan Thernstrom, Ken Blackwell, George Will and others all present support for Obama among white voters in 2008 as relevant evidence showing that Section 5 is no longer needed. On the other side, supporters of the Act say Obama's victory confirms Section 5's continued importance. The claim here rests largely on meager white support for Obama in places covered by Section 5, and is being advanced in Trevor Potter's amicus brief on behalf of former Republican officerholders, the New York Times editorial page, Jeffrey Toobin in the New Yorker to name a few. Taking no position on outcome, Nate Persily's brief with Steve Ansolabehere and Charles Stewart is devoted exclusively to racial bloc voting patterns in the 2008 election, evidence they suggest will be relevant and useful to the Court.

The Court should ignore them all and refuse to weigh in on the significance of Obama-s election--at least for now. Whether or not the Obama presidency is a "gamechanger" is not something the Justices should decide in this case. To consider Obama's election at this juncture would fundamentally alter the legal inquiry and amount to an ill-advised power grab by the Court. Rather than asking whether Congress had or has good reason to think Section 5 is still needed, the Justices would be deciding for themselves whether, in light of Obama's election, reauthorization is a good idea today.

The significance of Obama's election for the Voting Rights Act is difficult to assess. Obama was an unusually talented candidate running a high profile, well-funded campaign that elicited tremendous turnout at a moment when the stars arguably aligned for the Democratic nominee. Even so, Obama lost decisively in every single state wholly subject to the preclearance requirement, and won only narrowly in three states partially subject to Section 5, in all garnering fewer votes from whites in the south than he received nationwide. Partisanship alone cannot easily explain this differential. John Kerry did significantly better among white voters in covered states in 2004 than did Obama last year. What is more, the places where white support for Obama was most meager were also the places in which African-American voters offered Obama crucial support either during the primary or the general election.

In all these places, Section 5 actively shaped the electoral rules Obama confronted. We do not know how Obama might have fared in 2008 absent this regulatory regime. Perhaps Section 5 was superfluous. Perhaps, however, Section 5 is what guaranteed Obama a fair shot. These are difficult questions the Court is not equipped to decide today.

The issue is, nevertheless, not one the Court can or should entirely ignore. Obama's election inexorably shapes the lens through which Section 5 is now understood. Obama's presence in the briefs and commentary surrounding the case shows this, even if these references might technically be dismissed as legal error. The Court might well attempt to ignore the election and examine the 2006 evidence with willful blindness to the events that followed. This, however, poses a real danger as the Obama presidency cannot help but influence how the Justices will view the validity of Section 5 today. The Court should not pretend otherwise.

There is one thing the Court can and should do: step back and let Congress evaluate the significance of Obama's election in the first instance. To be sure, the Court lacks an obvious way to give Congress this opportunity. But feasible options exist. The Justices might do something as simple as hold the case until the end of the current congressional term so that Congress might consider the import of Obama's election. Alternatively, the Court might prod Congress more: it could strike down the statute as a burden that cannot permissibly be maintained absent congressional consideration of Obama's election, while staying its order for a period long enough to allow for Congress to act. (Although the latter path would indeed require some consideration of Obama's election, it would amount to no more than taking judicial notice of the fact that Obama's election is of such magnitude that Congress must take another look before maintaining this burden on the States.) Neither approach is unproblematic, to be sure. But either means the Justices need not engage in the treacherous task of finding and evaluating facts Congress never considered or pretending to ignore what nobody can ignore.

Congress may, of course, repeal, refine, or simply retain the preclearance requirement. It should weigh these options carefully. The Obama Justice Department, for its part, can play an important role in all this, too. It should use the time it would gain to implement a new, assertive stance with regard to Section 5. Many counties now regulated by the statute are eligible to free themselves from the preclearance requirement if only they would apply to be released from the regime. The Department of Justice should identify places with good voting practices and immediately offer agency support for such "bailout." At the same time, the Department should actively assist local leaders in places that do not currently qualify for bailout to develop strategies that would make them eligible for bailout in the coming years. Doing so would refine Section 5's reach, and activate a more vibrant and flexible remedial program even if Congress retains the Act otherwise unchanged.

As John Lewis said: "Barack Obama is what comes at the end of that bridge in Selma." It was a disrupted civil rights march on that Selma bridge that first propelled Congress to enact the Voting Rights Act nearly a half century ago. Obama's election may present an appropriate moment to bring the preclearance regime to a close. Or it may be proof that, notwithstanding our historic progress, much work remains to be done. Either way, the judgment should be Congress's to make in the first place. The Obama presidency is a terrible reason for the Supreme Court to toss out the statute now.

"The 2008 Election: A Look Back at What Went Right and What Went Wrong"

Doug Chapin leads off this week's Electionline Weekly.

"Politicization Charges at DOJ over Brazile Appearance"

WSJ's Washington Wire offers this report. Who is making the charge of politicization? Hans "Publius" von Spakovsky.

Divided Time in NAMUDNO?

Could be.

"Coleman v. Franken: Will the ThreeJudges report to the Senate?"

Some very interesting musings from Eric Black at MinnPost.

Rebecca Kysar on Earmark Rules and Statutory Interpretation

This article appears in the latest issue of the Cornell Law Review.

Richard Painter Blogging on Government Ethics Reform At Volokh Conspiracy

See here. Related posts are listed at the end. This series of posts draws upon Painter's new book on the topic.

Still More Mauro on Citizens United

See this USA Today oped.

See also this WSJ editorial.

More NAMUDNO Amicus Briefs

Via this page at the NAACP LDF, you can find more amicus briefs including:

Constitutional Accountability Center

Six Covered Jurisdictions (NC, AZ, CA, LA, MS, and NY)

Reps. Conyers, Sensenbrenner, Watt & Nadler, former Rep. Chabot (Pam Karlan)

Asian American Legal Defense and Education Fund

Julius Chambers

"FEC Turns Blind Eye to Thompson, Sets Awful Precedent"

Firedoglake links to this decision of the FEC on the Fred Thompson "testing the waters" complaint. Democratic Commissioner Weintraub joined with the three Republican commissioners in a statement of reasons. Very interesting. UPDATE: Adam Bonin offers his thoughts.

"Court Focuses Skeptical Eye on McCain-Feingold"

Tony Mauro has written this analysis of the Citizens United oral argument for the First Amendment Center.

New Demos Election Day Registration Proposals

See here.

NAMUDNO Amicus Briefs Supporting the Government

Leadership Conference

Jurisdictions that Have Bailed Out (Hebert)

Brennan Center

Former Republican Elected Officials (William S. Cohen, former Secretary of Defense and Member of the U.S. Congress; Robert "Bob" Dole, former Senate Majority Leader and 1996 Republican Presidential Nominee; former U.S. Representative Amory "Amo" Houghton, Jr.; Richard Lewis "Dick" Thornburgh, former Governor of Pennsylvania and U.S. Attorney General; and former Governor of Massachusetts, William F. Weld, by Campaign Legal Center)

Former AG Katzenbach and former Assistant AGs (Bagenstos)

More to come

"Minnesota Senate Mess Could Get New Influx Of Money -- And Appeals"

TPMDC offers this report.

"Most Electronic Voting Isn't Secure, CIA Expert Says"

McClatchy offers this report.

Guilty Plea in St. Louis Voter Registration Fraud Case

See here.

Citizens United Roundup

Howard rounds up the major news stories here and here. See also Dahlia, Bob (responding to my post from yesterday), and Tony Mauro.

Citizens United: Of Book Banning, Kindles, and the Corporate PAC Requirement

If I were teaching election law this semester, I would make the transcript in today's oral argument in the Citizens United case required reading. Deputy Solicitor General Malcolm Stewart came in for very tough questioning, on an issue the Court certainly does not need to reach in order to find for Citizens United in this case: may Congress constitutionally bar corporations such as General Motors from spending treasury funds on books or materials beamed via Satellite to a device like a Kindle that feature a candidate for office and that either contain express advocacy or are the functional equivalent of express advocacy? To be clear, the statute barring the use of corporate treasury funds to pay for "electioneering communications" does not reach books (whether it reaches Kindle via Satellite is an interesting statutory interpretation question---I would likely say no). But much of the time was devoted to the question whether Congress could hypothetically pass such a statute consistent with the Constitution's guarantee of free speech.

In retrospect (and not to demean Mr. Stewart, who is an excellent advocate), Stewart should have deflected the questions by equivocating on the question, stressing the Court did not need to reach the issue in this case. The idea that the government could ban the use of corporate funds for books did not sit well even with the liberal Justices---it really took the wind out of Stewart's sails. What he could have said as well is that the Court in McConnell upheld the electioneering communications provision under a strict scrutiny standard based upon a detailed record compiled by Congress showing the effect of campaign broadcast ads on elections. It is the distorting effects of such ads, and not other corporate (and union) activity, that was the target of BCRA. (He likely did not want to make this argument, because it would have strengthened Ted Olson's point that Congress was aimed at 30-second ads, and not 90 minute movies). So the question whether there would be a sufficient evidentiary record to apply an electioneering communications test to books under strict scrutiny is unknown.

But Stewart's argument played into Olson's hands. By taking an extreme position that could be seen as akin to throwing someone in jail for writing a book, or book-banning, Stewart went way down the slippery slope, making it more likely that a majority on the Court (Alito, Roberts, Kennedy, Scalia, and Thomas) will want to say something about the Constitution, and not merely decide, as I've suggested, that the video-on-demand delivery of the anti-Clinton movie simply is not covered by the statute.

The one bright side for supporters of reasonable campaign finance regulation is that the disclosure rules seem relatively safe, at least based on the questions. The only notable exchange occurred when Chief Justice Roberts questioned whether the Brown v. Socialist Workers exemption for disclosure requirements was too harsh on those seeking an exemption. Under the exemption, a person or group claiming they face threats of harassment if their contributors were disclosed must demonstrate a likelihood of actual harassment. The Chief questioned whether this standard was too harsh on some groups. But I would be shocked if there was a majority of the Court poised to gut the disclosure provisions of BCRA.

Citizens United Transcript Etc.

Transcript.

AP.

"Coleman Appeal Could Play Constitutional Wild Card"

Minnesota Public Radio offers this report. My earlier Slate piece on this subject is here.

Eagleton Event on Public Financing of Campaigns in New York, New Jersey, and Connecticut

Details here.

Anti-ACORN Provision in National Service Bill

See here.

Citizens United: The Early Word

Lyle Denniston thinks that the Court side with the plaintiffs on the question whether the video-on-demand broadcast is constitutionally exempt from/not covered by BRCA. But he also thinks the Court did not seem interested in overruling section 203 of BCRA or, more broadly, the Austin case.

That's in line with my earlier predictions.

I also hear that the disclosure provisions were hardly discussed at oral argument, leading me to believe that they will be safe from a new constitutional exemption.

More to come.

Citizens United Argued Tuesday in the Supreme Court

An NPR preview is here. A NY Times editorial is here.

My preview of the case for the ABA and a related blog post is here.

Once the transcript is released after argument, I'll link.

New Voluntary Public Financing Proposal for Congressional Elections

The Washington Post offers this report on a very interesting set of proposals. I haven't seen the actual bill language, but it appears that some of the provisions raise some legitimate constitutional questions.

Another 3-3 Partisan Split at the FEC

This is getting to be a pattern.

Democratic Party Commission to Consider Changes to Primary, Caucus System

See here. The full letter and list of commission members is here.

"Newark campaign worker indicted on election fraud charges"

NJ.com offers this interesting report.

Wondering if This Map Says Anything Relevant in NAMUDNO

See here. Paging Nate Persily. UPDATE: Nate (Persily) points me to this follow-up post from Nate (Silver), which shows more of the pattern I expected to see.

CS Monitor on Citizens United

Here.

"The Coleman-Franken Recount: Can It Be Over Soon?"

Why we might not learn more about how Bush v. Gore could apply in Minnesota.

Two Student Pieces in the Latest Harvard Law Review

A student note is entitled Political Gerrymandering 2000-2008: "A Self-Limiting Enterprise"?. The issue also features this case note on Shays v. FEC.

"Editorial: Vote-by-mail seems the way to go"

So says the OC Register.

Two from the Plain Dealer

The newspaper offers Double Voting Seen as Unlikely and ACORN Workers Begged for Sign-Ups, Board Told. A snippet from the latter article: "Barkley, of Cleveland, said he was homeless and reading a book on Public Square when he signed some of the 13 cards that contain his name. He filled out cards -- with his mother's house or workplace as the address -- to help workers stay employed." The article reports that "ACORN leaders have acknowledged that workers paid by the hour were given quotas to fill."

Common Cause Going Out of Business in Florida

Wow.

More on Constitutional Amendment Regarding Senate Vacancies and a Legislative Alternative

See this WaPo editorial. A snippet: "Constitutional scholar Vikram Amar said he believes that the Schock bill would pass muster; another scholar, Laurence H. Tribe, disagrees." Michael Stern sides with Vik.

More Previews of Citizens United

SCOTUSblog and CQ Politics.

WaPo on the Minnesota Senate Race and the D.C. Vote

See here and here.

"Conyers Suggests Probe of ACORN"

The Washington Times offers this report.

AP Preview of Citizens United

Here.

Will New SG Elena Kagan Argue NAMUDNO As Her First Appellate Argument?

It could be.

Norm Ornstein on the Minnesota Senate Battle

See here.

Coleman Lawyer Predicts Franken Win in Trial Court; Pushes Constitutional Argument to Be Raised in State Supreme Court

See here. A snippet:

Q. Well, when you say quick appeal, are you confident that you are going to lose the case in front of the three-judge panel? By losing the case, I mean Norm ends up with less votes.

A. I think that's probably correct that Franken will still be ahead and probably by a little bit more. But our whole argument was that it was a constitutional argument, and it's an argument suitable for the Minnesota Supreme Court, not for the trial court. So we will see whether we were right or not.

"Ky. Officials Accused of Election-Rigging Scheme"

AP offers this report, which begins: "A judge, school superintendent and county clerk in southeastern Kentucky have been indicted on charges they extorted money from political candidates so they could bribe voters in a scheme to rig several elections, authorities said Thursday."

Dave Douglas Named William and Mary Law Dean

The announcement is here. I had the pleasure of working with Dave on events with his school's election law center and the National Center on State Courts. A great choice for W & M!

Bauer on Redish v. Horwitz on Anonymous Political Speech

Here.

"Perdue says Obama proves Georgia doesn't need Voting Rights"

The Atlanta Journal-Constitution offers this report.

"Supreme Court Considers Anti-Clinton Movie"

USA Today offers this preview of Citizens United.

DOJ Files Merits Brief in NAMUDNO

You can find the brief here. Travis County's brief on the merits is here. Amicus briefs supporting the constitutionality of section 5 are due next week.

"America Goes to the Polls Released"

The Nonprofit Voter Engagement Network has issued this report.

It "will be widely viewed as one of the most influential works in the history of election administration."

So says Doug Chapin in his review of Heather Gerken's The Democracy Index.

"Republicans charge campaign violations by ACORN"

The Hill offers this report. A snippet: "In testimony to the Judiciary Subcommittee on the Constitution, Civil Rights and Civil Liberties, Republican National Lawyers Association Vice President Heather Heidelbaugh will assert ACORN's Project Vote violated the Internal Revenue Code by participating in voter registration and turnout operations for President Obama's campaign." You can find Ms. Heidelbaugh's testimony here.

Another Partisan 3-3 Split at the FEC

This ($) is becoming a trend.

"Ohio GOP wants more input on redistricting"

The Cincinnati Enquirer offers this report.

Is Paul Ryan Taking "Crazy Pills?"

He's starting to believe it when he looks at the FEC's possible treatment of recount funds in the Franken-Coleman matter.

Notice the "but"

Jay Weiner on my new Slate piece: "It comes from a law professor, but it's very readable."

"Lessons Learned from the 2008 Election"

The House Committee on the Judiciary, Subcommittee on Constitution, Civil Rights, and Civil Liberties is holding this hearing today. By clicking on the link, you can also download the testimony from the very interesting set of witnesses.

Bauerly and Weintraub Respond in Romney Case

Following up on this post, FEC Commissioners Bauerly and Weintraub have released this statement of reasons in the Romney matter. It concludes: "This was not a difficult case. Kern Gardner paid $150,000 to charter an airplane to fly himself and as many as 200 Romney supporters from Utah to Boston to work at an RFP fundraising event, at the campaign's request. The law clearly states that any unreimbursed travel payment exceeding $1,000 made on behalf ofa campaign is a contribution to the candidate. RFP did not reimburse Mr. Gardner. The other travelers did not reimburse Mr. Gardner. That is why we voted to find reason to believe that Kern Gardner made, and Romney for President, Inc. and Darrell Crate, in his official capacity as treasurer accepted, an excessive in-kind contribution in this matter."

No statement yet from Commissioner Walther.

"Franken's Monster: Will Bush v. Gore Bite Democrats in Coleman v. Franken?

I have just written this piece for Slate. It concludes: "In the end, Coleman doesn't have a strong equal-protection argument. Then again, most of us thought George W. Bush didn't, either."

Was Tom Saenz "Zinnied" from Appointment as Head of DOJ's Civil Rights Division?

Mickey makes the case.

Tova Wang on Lessons Learned from the 2008 Election

I'll be posting those lessons tomorrow.

"Will Obama Take on the FEC?"

Meredith McGehee wonders.

Malbin and Bauer on the Continuing Need for Contribution Limits

See here and here.

"Reluctance to Void Elections - Some Memorable Cases"

Nathan Cemenska has written this Election Law @ Moritz comment.

"Feds were involved in ACORN raid in Nevada, officials say"

The Raw Story reports.

"FEC to Eye Minnesota Recount Battle, Including Draft to End Donation Limits"

BNA Money and Politics Report offers this report ($).

"Still Broken"

The NY Times offers this editorial on election administration reform.

"Conservatives invoke Obama in Voting Rights Act challenge"

The LA Times offers this article on NAMUDNO.

"Voter ID legislation clears major Texas Senate hurdle"

AP offers this report.

Amar on "Bush, Gore, Florida, and the Constitution"

Akhil Amar will give this webcast lecture at the University of Florida on March 24. Looking forward to hearing it.

"Electronic Voting"

The Irish Timesoffers this editorial, which begins: "THE GOVERNMENT finds itself in a deep hole because of the purchase and storage of thousands of electronic voting machines. It should stop digging. What had seemed like a good idea, way back in 1999, has turned out to be an unmitigated disaster. The initial waste of public money on the purchase of this dangerously insecure system has been compounded by the establishment of long-term leases of up to 30 years for the storage of machines in controlled environments."

"Voter Registration Databases: Initial Discussion on Reviewing HAVA Mandated Guidance"

Testimony now available of this EAC hearing.

"New York City Term Extension Approved by Justice Department"

Bloomberg (!) reports on the section 5 preclearance. UPDATE: More from the NY Times.

"G.O.P. Eyes Bush v. Gore for Coleman"

See here.

KaufmanDowning Now Kaufman, Downing

See here, here, and here.

"Will Obama Take on the FEC?"

CREW has this post.

Now Available for Ordering: The Glannon Guide to Torts

The book should ship from the publisher next week, but you can now place your order for my new book, The Glannon Guide To Torts: Learning Torts Through Multiple-Choice Questions and Analysis. Though I devote most of my academic writings to the fields of election law and legislation, this is my second book on my other constellation of interests: Torts, Contracts, and Remedies. My book on Remedies is here.

"Holder Asked to Overrule Donsanto, Open Criminal Probe of Chamber 527"

BNA Money & Politics Report offers this very interesting report ($), which begins: "Two political watchdog organizations March 16 called on the Obama administration's Justice Department to reverse the decision of a key DOJ official, who rejected a request to investigate the U.S. Chamber of Commerce for alleged campaign finance violations four days before the end of the Bush administration. Heads of the watchdog groups Citizens for Responsibility and Ethics in Washington (CREW) and the Campaign Legal Center wrote a letter to Attorney General Eric Holder regarding the Chamber's actions in providing $3 million in funding to the November Fund, a so-called Section 527 political organization which operated during the 2004 presidential election."

"Judges to Decide Minnesota Senate Election"

NPR offers this report.

"Charaties Give to State Campaigns, Despite Law"

The NY Times offers this report.

Another 3-3 Partisan Split on FEC

See this statement of reasons from the three Republican commissioners concerning a dispute over the payments of flight expenses for Romney for President volunteers.

For more FEC-related developments, see here.

"Election Legislation 2009: Threats & Opportunities Assessment"

Project Vote has issued this research memo.

"Shut Out at the Polls; A registration system that disenfranchises millions needs judicious repair"

The Washington Post offers this editorial.

"Campaign Finance Reform Finds Unlikely Allies"

Eliza's latest.

von Spakovsky on Ike Brown Case

See here.[corrected link]

"Recount Drama Moves into Judges' Chambers"

The Star-Tribune offers this report.

Political Fundraisers Still Attacking 'McCain-Feingold'"

Tara Malloy has this post on the CLC blog.

"Gerrymandering on Trial"

Edward Blum has written this piece on NAMUDNO for the American Spectator.

"A 'Bailout' of Another Sort"

CQ Politics offers this report on NAMUDNO.

A Bartlett Challenge in New Jersey?

Could be. Given that the creation of such a district was not mandated as part of section 2 litigation, and given that Justice Kennedy says nothing prevents states from voluntarily creating such crossover districts, I'm not sure I understand the theory which would render the New Jersey districting illegal.

Tom Saenz Not Going to Be Head of DOJ Civil Rights Division, Apparently Because of Immigration Issues

See here. The official nomination of Tom Perez to the post is here.

"'Hillary the Movie to Get Supreme Court Screening"

The Washington Post offers this report.

Cornell LII Preview of Citizens United Oral Argument

Here.

Previewing the Supreme Court's Citizens United Case

I have just written this case preview for the ABA Supreme Court Preview, "Can McCain-Feingold Restrict a Corporation's 'Video-on-Demand' Candidate Documentary and Advertising?" (Republished here with permission.)

I also wrote a blog post about how this case could well be decided on narrow grounds through the canon of constitutional avoidance.

Quote of the Day

"We all remember Bush v. Gore."

--Senator Mitch McConnell, urging Norm Coleman to take his Minnesota Senate election contest all the way to the United States Supreme Court if necessary. The trial just ended.

Cross-over Districts and Shaw Claims

I've already blogged about Justice Kennedy's reliance on the canon of constitutional avoidance in his recent plurality opinion in Bartlett v. Strickland. I was just looking over that discussion in the case again, and I was struck by the sentence below that I have put in boldface:

To the extent there is any doubt whether s 2 calls for the majority-minority rule, we resolve that doubt by avoiding serious constitutional concerns under the Equal Protection Clause. See Clark v. Martinez, 543 U.S. 371, 381-382, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (canon of constitutional avoidance is "a tool for choosing between competing plausible interpretations of a statutory text, resting on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts"). Of course, the "moral imperative of racial neutrality is the driving force of the Equal Protection Clause," and racial classifications are permitted only "as a last resort." Richmond v. J.A. Croson Co., 488 U.S. 469, 518, 519, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (KENNEDY, J., concurring in part and concurring in judgment). "Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it threatens to carry us further from the goal of a political system in which race no longer matters-a goal that the Fourteenth and Fifteenth Amendments embody, and to which the Nation continues to aspire." Shaw v. Reno, 509 U.S. 630, 657, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). If § 2 were interpreted to require crossover districts throughout the Nation, "it would unnecessarily infuse race into virtually every redistricting, raising serious constitutional questions." LULAC, 548 U.S., at 446, 126 S.Ct. 2594 (opinion of KENNEDY, J.); see also Ashcroft, 539 U.S., at 491, 123 S.Ct. 2498 (KENNEDY, J., concurring). That interpretation would result in a substantial increase in the number of mandatory districts drawn with race as "the predominant factor motivating the legislature's decision." Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995).

"New Leadership PACs Surface, as FEC Applies Bundling Rule to Them, Lobby PACs"

BNA Money & Politics Report offers this report ($).

On Funding the Election Reform Project

From this report (very critical of AEI): "Norm Ornstein, the congressional scholar whose centrist work clashes with the neoconservative image of the think tank, was told last year by the Carnegie Foundation to look elsewhere for money to fund his Election Reform Project. He was pointed to the Open Society Institute, funded by George Soros, although he said Thursday he never made that call."

Bauer on Lessig and Trippi's "Donor Strike"

here.

"Senate trial closing arguments in sight"

MPR offers this report.

When is a Secret Ballot Necessary?

This is not a post about EFCA, a subject about which I know embarrassingly little. Instead, it is about this decision of a California Court of Appeal today, holding that elections held pursuant to Proposition 218 must be conducted via a secret ballot. These elections are special assessment elections, for which the one person, one vote rule does not apply, and presumably vote buying is legal. (See the discussion after Salyer Land in the Lowenstein, Hasen, and Tokaji casebook.) So it is a bit odd that the reason the Court of Appeal gives for requiring a secret ballot is the conclusion that Proposition 218 speaks in terms of "elections" and the right to "vote." If these other normal election requirements are not required and it is still considered an "election," it is not self-evident to me that a secret ballot requirement also must apply. I'm not saying that it shouldn't apply; only that it is not self-evident, particularly to the extent that there can be legal vote-buying.

"On Amending and Revising the Constitution: The Issues behind the Challenge to Proposition 8"

Justice Grodin has written this article for the California Journal of Politics and Policy. Jesse Choper also has an article on Prop. 8's retroactivity.

President Obama States Support for Continued Use of Section 5

It is also interesting that he relies on racially polarized voting as a reason for the constitutionality of the renewed section 5. That point is not self-evident, though I think there are other good arguments for section 5's continued constitutionality.

Gerken's New Book

I've just received a final bound copy of Heather Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton 2009). I am in the process of writing a review of this very important book, so I'll be getting my thoughts out about the book in due course. In the meantime, I'll just say: Highly recommended!

The Congressional Power Theory Supporting Congressional Legislation Regulating the Filling of Senate Vacancies

In this post, I questioned the constitutionality under the 17th Amendment of proposed congressional legislation requiring states to hold an election to fill an open Senate seat within 90 days of the vacancy. I did not see this as within the time, place, and manner powers of Congress to regulate congressional elections in light of the 17th Amendment's specific language giving the power of filling vacancies and making temporary appointments to the states (and potentially to the state's governors).

A reader points me to Vik Amar's testimony before a joint congressional committee in which he (surprisingly, to me) comes out the other way. A snippet:

The question of Congressional power over vacancy-filling Senate elections may seem a bit trickier. Certainly, Congress under the original Constitution had the power to regulate the timing of all Senate elections done by state legislatures, including elections done by state legislatures to fill unexpected vacancies. Indeed, Congress in 1866 passed an Act that regulated the manner and timing of all state legislative elections of U.S. Senators. The Act said that whenever there was a Senate vacancy of any kind, both houses of a state legislature, on the second Tuesday they were in session, must vote to fill the vacancy, and if no person was elected, both houses must continue to vote at least once each and every day thereafter of the legislative session.

Do the text and timing of the Seventeenth Amendment change any of this? I think the answer is "no." As for text, it is true that the last words of the vacancy-filling provision of the Seventeenth Amendment - "by election as the legislature may direct: - suggest that state legislatures enjoy discretion. To be sure, the phrase "as the legislature[] thereof may direct" or "as the Congress may direct" used elsewhere in the Constitution connote broad independence and leeway. For example Article II's use of the phrase "as the legislature[] thereof may direct" has been interpreted by the Supreme Court in Bush v. Gore as giving state legislatures extremely wide latitude in picking Presidential electors. But the key difference is that in the Presidential election context, state legislative discretion is not superseded by explicit Congressional power embodied in Article I, Section 4. Article I, Section 4 itself says state legislatures have power to prescribe times, places and manners - broad leeway - but that such power can be overridden by Congressional exercise. So even though the "as the legislature may direct" language of the Seventeenth Amendment connotes state legislative power, if that power is constrained by Article I, Section 4, then the Seventeenth Amendment provides no barrier to statutes like E.L.E.C.T.

But can we apply Article I, Section 4 Congressional power to a provision of the Constitution enacted after Article I was adopted? Grammatically we surely can. Article I, Section 4, speaks broadly of Congress' power to "alter or make" "at any time" the regulations concerning the time of "holding elections for Senators and Representatives" - not just some temporal or geographical subset of Senators or Representatives.

Moreover, everyone seems to agree that we can and do apply Article I, Section 4 to regularly scheduled (every six year) Senate elections held by the people of each state, even though these popular elections are created and provided for only in the Seventeenth Amendment, adopted after Article I, Section 4. And there is nothing in the text of the Seventeenth Amendment that distinguishes regular popular elections from vacancy-filling popular elections. If Article I, Section 4 applies to the former, it ought to apply to the latter as well, and there are no words in or legislative history of the Seventeenth Amendment to suggest otherwise.

Indeed, the legislative history strongly favors applying Article I, Section 4 to all of the Seventeenth Amendment's provisions. Southern Senators attempted, during the latter stage debates over the Seventeenth Amendment, to insert language that would have freed popular elections of Senators from Congressional control under Article I, Section [4].

It is worth looking at the other testimony from the hearing as well, including from Pam Karlan.

More Bauer on Ginsburg on Bartlett

Here.

"Coleman vs. Franken Senate contest drags on in Minnesota"

The LA Times offers this report.

"After marathon session, Senate advances bill to toughen voter ID requirements"

The all night session must have been a great bonding experience for everyone.

President Obama on Earmarks and Signing Statements

See here and here.

"Illinois Scandal Spawns a Debate: Amendment Would End Appointments"

The Washington Post offers this article. Near the end, it includes the following: "Freshman Rep. Aaron Schock (R-Ill.) offered a compromise -- a measure that would change the law, not amend the constitution, by requiring states to hold an election to fill an open Senate seat within 90 days of the vacancy. But it would leave in place the governor's authority to appoint a temporary senator until the election is held. 'This is a simple alternative,' Schock said, that will 'get us to where we want to go much quicker and cleaner" than a constitutional amendment.'"

Quicker and cleaner, but constitutional? Consider the 17th Amendment, which provides: "When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. "? Where does Congress get the power to require an election within 90 days? What am I missing?

"New ACLU Report Highlights Florida's Failure to Address Continued Voter Disfranchisement Problems; Provides Solutions"

This press release describes this new report issued by the ACLU of Florida. More here.

Read the Important Testimony in Today's Senate Rules Hearing on Voter Registration

Ansolabehere, Gans, Persily, Nelson, Clarke, and Goldman. Read it all on the Rules Committee's beautiful new website.

"$1M withheld from candidates"

Joe Trippi and Larry Lessig have written this Politico ideas piece.

"Port Chester Attorneys See Link in Supreme Court Voting Rights Case"

Will the Port Chester case be influenced by the Bartlett decision? The post talks about important dicta in Justice Kennedy's opinion on the third Gingles criterion, racial bloc voting.

"Dan Walters: Court ruling may shrink ranks of black politicians"

When Prop. 11 meets Bartlett v. Strickland.

"Coleman warns donors after purported data breach"

AP offers this report.

"Leaders Strategize on How to Pass D.C. Vote Bill"

The Washington Post offers this report.

"Hurdles to Voting Persisted in 2008"

The NY Times offers this report, which begins: "Four million to five million voters did not cast a ballot in the 2008 presidential election because they encountered registration problems or failed to receive absentee ballots, which is roughly the same number of voters who encountered such problems in the 2000 election, according to an academic study to be presented to the Senate Rules Committee on Wednesday." I don't see Steve Ansolabehere's report yet (or other witness testimony) posted at the Senate Rules Committee page for this hearing.

"Narrowing the Voting Rights Act"

The NY Times offers this editorial.

You Don't See This Every Day

A bill in Iowa that would prohibit independent expenditure material that "disparages" a candidate from being distributed without the permission of the candidate who "might" benefit from the spending. Besides the fact that this is blatantly unconstitutional, it would turn every independent expenditure into a coordinated contribution, no?

Thanks to a reader for passing this along.

"Franken, in D.C., says he sees 'a light at the end of the tunnel'"

The Star-Tribune offers this report.

Advice to Congress from Justice Ginsburg in Bartlett

In yesterday's Supreme Court decision in Bartlett v. Strickland., Justice Ginsburg wrote: "I join JUSTICE SOUTER's powerfully persuasive dissenting opinion, and would make concrete what is implicit in his exposition. The plurality's interpretation of s 2 of the Voting Rights Act of 1965 is difficult to fathom and severely undermines the statute's estimable aim. Today's decision returns the ball to Congress' court. The Legislature has just cause to clarify beyond debate the appropriate reading of s 2." I wrote yesterday that "While Justice Ginsburg in her short dissent urges Congress to amend Section 2 to allow for the kinds of claims raised in this case (much like Congress recently did in amending Section 5 to undo (or partially undo) the Court's decision in Georgia v. Ashcroft), it's a risky strategy before this Court, which could then strike down an amended section 2 as unconstitutional."

Orin Kerr finds it problematic that Justice Ginsburg is telling Congress what they should do, believing it undermines judicial independence. Bob Bauer thinks that Congress is unlikely to act now, because it is not clear what Congress should do (that is, there's no clean "Bartlett v. Strickland fix," the way there was a "Georgia v. Ashcroft fix").

I think Bob is right to at least this extent. There won't be the will or interest to revisit the VRA until after the Court speaks again on the constitutionality of section 5 in the NAMUDNO case at the end of this term.

"Colorado's citizen initiative system gears up for another monster ballot"

The Colorado Independent offers this report.

President Obama Cautions Against Reliance on Bush Signing Statements

Howard Bashman rounds up the stories about this memorandum issued by the White House.

" Voter Registration System Needs to Be Modernized"

Robin Carnahan, the Democratic Secretary of State of Missouri, and Trey Grayson, the Republican Secretary of State of Kentucky, have written this Roll Call oped ($). A snippet: "One key area where improvements are necessary, and possible, is the modernization of our voter registration system. We're pleased to see that the Senate Rules and Administration Committee is holding a hearing Wednesday on our voter registration system, and we encourage the committee, in a bipartisan way, to consider the challenges of our system and ways in which its efficiency, accuracy and cost effectiveness can be improved. The 2008 elections made it clear that our system relies too heavily on outside groups to register voters and places considerable burdens on individuals seeking to register or update their registration. This can lead to concerns about invalid registrations clogging the system or voter rolls plagued by duplicate and inaccurate information."

"McCain Fights an Old Battle with His Party"

CQ Politics offers this report. It begins: "It must be get old fighting with your own party over campaign finance issues, but Sen. John McCain is squaring off once again with the GOP in a court battle over soft money."

"Gun Amendment Threatens D.C. Voting Bill"

NPR offers this report.

Press Coverage of Bartlett v. Strickland

New York Times

Washington Post

Wall Street Journal

AP

LA Times

SCOTUSblog

Legal Times

Christian Science Monitor

Reuters

Another Major Loss for the LA Times

Capitol Weekly: "More bad news from the world of the Capitol press corps. Dan Morain, one of the deans of state political coverage, is leaving the LA Times. Morain’s departure is not just the type of loss that we have grown to expect among our ranks. Morain consistently dug into corners of state government where nobody else was looking. Morain could always be relied on to dig through public documents, and emerge with stories that no other reporter was writing -- and that was back when we had a fully operational press corps. Morain's departure comes amid increased layoffs in the media world at large. More cuts are expected to be announced soon at the Times and the Sacramento Bee."

Another huge blow for the L.A. Times. After losing Bob Salladay and Henry Weinstein. It is very sad to see what is happening to my hometown paper. True, there are still excellent reporters covering the courts (David Savage, Maura Dolan, and now Carol Williams) and covering state politics. But not enough of them left at the Times. When you talk to someone like Bob, Henry, or Dan, you get a level of sophistication and understanding that is rare these days among reporters. I also know how uncomfortable Dan made me feel when he'd call me regarding initiatives on which I was working as a paid consultant. He asked the hard questions and went right to the nub of the matter. Exactly what a great reporter should do.

Why Did Voter ID Die in Mississippi?

Clarion Ledger-Journal editorial: "It's difficult to not draw the conclusion that the four Republican senators who killed voter ID simply like having voter ID around as a wedge issue in elections. If they didn't, they missed a powerful opportunity to put voter ID in place in a way that Republicans and Democrats could both accept." More here and here.

80 Additional Ballots, Not 1,600, Now at Issue in Franken-Coleman Contest

This is quite significant. I am not following this as closely as some others, but I think what this means is that the last major potential group of ballots for Coleman won't be enough to swing him to victory. This means that the likely remaining argument for Coleman is an equal protection argument, one that the three-judge court, at least, did not seem likely to accept. The hope then for Coleman, is with either the Minnesota Supreme Court or the United States Supreme Court (barring a new federal action), relying on an expansive reading of Bush v. Gore.

Initial Thoughts on Bartlett v. Strickland: Narrowing the Voting Rights Act to Save It?

This morning's decision by the Supreme Court in Bartlett v. Strickland significantly narrows the reach of section 2 of the Voting Rights Act, and does so in a way that suggests a possible way out of the constitutional challenge in the upcoming constitutional challenge to Section 5 of the Voting Rights Act. The bargain appears to be this: the Court will construe the Act in ever stingier ways in the name of saving the Act from being struck down as unconstitutional. While Justice Ginsburg in her short dissent urges Congress to amend Section 2 to allow for the kinds of claims raised in this case (much like Congress recently did in amending Section 5 to undo (or partially undo) the Court's decision in Georgia v. Ashcroft), it's a risky strategy before this Court, which could then strike down an amended section 2 as unconstitutional.

Here are a few other initial thoughts on this case, which could change after I reflect more on the opinions::

1. A mechanical, narrow way out. As John Hart Ely remarked about the one person, one vote rule, administrability is the "long suit" for the controlling Kennedy opinion (When I refer to "the Court" in this blog post, I mean the controlling Kennedy opinion). In future cases, if minority plaintiffs challenge a jurisdiction for failing to create a majority-minority district under Section 2 of the VRA, the jurisdiction can defend itself by showing that it was not possible to draw a reasonably compact majority-minority district with at least 50% of the voting age population. So even in a jurisdiction where there is racially polarized voting and a minority population near 50%, there is no section 2 violation for failing to draw a district predominantly containing members of the minority group and relying on a relatively small number of "crossover" white voters. The decision thus turns "50%" into a magic number, and will both reduce the number of majority-minority districts mandated by section 2 and also reduce some of the litigation surrounding section 2.

The Court reaches this decision by construing the language of section 2 (which is pretty vague and somewhat self-contradictory), the Court's decision in Gingles (which expressly left this issue open), and the canon of constitutional avoidance. On this latter point, the Court said that because this statute involves race: "There is an underlying principle of fundamental importance: We must be most cautious before interpreting a statute to require courts to make inquiries based on racial classifications and race-based predictions. The statutory mandate petitioners urge us to find in s 2 raises serious constitutional questions." In other words, to avoid having courts have to deal with difficult empirical questions involving the role of race in state and local politics, which could cause impermissible consideration of race in making of government decisions, section 2 should be read narrowly.

2. Remedying a Section 2 Violation without a Majority Minority District?. The Court makes clear that a jurisdiction would not necessarily have to draw such a district even if the protected minority group made up at least 50% of the population of a hypothetical majority-minority district; the jurisdiction might draw two coalitional districts. In this way, the move looks reminiscent of what the Court did in the section 5 context in Georgia v. Ashcroft, before it was reversed by Congress.

3. Implications for the Section 5 Challenge in NAMUDNO. On the last day of the term, the Court will consider the constitutionality of section 5 of the Voting Rights Act (not at issue in this case). I've written extensively on this question and hosted a blog forum on the topic. It is widely believed that Justice Kennedy will hold the deciding vote on section 5's constitutionality. The opinion today in Bartlett is likely to elicit a mild cheer from supporters of the Act's constitutionality. They will be heartened by this statement in the Court's opinion: "Some commentators suggest that racially polarized voting is waning--as evidenced by, for example, the election of minority candidates where a majority of voters are white. [Citations.] Still, racial discrimination and racially polarized voting are not ancient history. Much remains to be done to ensure that citizens of all races have equal opportunity to share and participate in our democratic processes and traditions; and s 2 must be interpreted to ensure that continued progress." But it is clear that there is a serious price to pay: an emasculated reading of the Act. Justice Kennedy goes on in the opinion to note the "irony" if section 2 "were interpreted to entrench racial differences by expanding 'a statute meant to hasten the waning of racism in American politics.'" This suggests that if Justice Kennedy votes to uphold section 5, it will be a section 5 whose reach becomes ever narrower.

4. Important Open Question Regarding Latino Majority-Minority Districts. I was struck in reading the Justice Kennedy opinion over how the Court phrased the test before it: "Do minorities make up more than 50 percent of the voting age population in the relevant geographic area? (My emphasis.) Note that the Court does not speak of citizen voting age population. That's not an issue when it comes to African-American majority-minority districts, as in this case, but is an issue in Latino majority districts. It is interesting that Justice Souter's dissent speaks repeatedly of "CVAP" (citizen voting age population) but that's not the standard in the Kennedy opinion. It may leave room for litigation on this important citizenship question just before the next round of redistricting which could be significant.

Breaking News: Supreme Court Decides Bartlett v. Strickland

The opinion is here. As I expected, the Court divided 5-4 against an expansive reading of section 2 of the Voting Rights Act. Lyle's analysis is here. More after I have had a chance to read the opinion.

The court also denied cert in a ballot access case involving Ralph Nader and Arizona.

"Voter ID fights takes new shape at Capitol"

The Austin-American Statesman offers this report.

"Nonprofits Wield Some Serious Campaign Cash"

CQ Politics offers this report.

Watch the New Jersey Electronic Voting Case

You can see it here for a fee, though I've been informed that if any of my readers are at AudioCaseFiles law schools, then they will get access to the video for no additional charge starting 30 days after the event.

"Ballot measures' labels changed after complaints"

The Sacramento Bee offers this report.

Eleventh Circuit Avoids Merits in Challenge to Judicial "Commit or Appear to Commit" Clause

See here. Howard has more.

"Franken may have won by losing at MN Supreme Court"

Eric Black analyzes.

Valelly on Minesota Opinion

Rick Valelly emails:

For what it's worth, I think that there is an interesting mistake in the MN Supreme Court's opinion denying Franken's petition for an order to the Governor and the Secretary of State that Minnesota issue a certificate for him. The Court -- glossing Roudebush v. Hartke -- reads Smiley v. Holm (a case from Minnesota ironically) as saying that Article 1 section 4 gives any state the authority to establish "a complete [election] code." That's not what Chief Justice Hughes said, though, in Smiley. He said that Article 1 Section 4 gives Congress the authority to establish a "complete code." The mistake does not disturb the finding, as far as Ican tell -- but it's a curious misreading of Smiley.

"2010 Census: Fundamental Building Blocks of a Successful Enumeration Face Challenges"

The GAO has issued this report.

"State high court denies Franken bid for election certificate"

The Star-Tribune offers this report. You can find the Minnesota Supreme Court's unanimous opinion here.

You can also read this 3-2 decision issued today, which I think explains an earlier ruling of the court.

Quote of the Day

"This case, if it were allowed to proceed, would deserve mention in one of those books that seek to prove that the law is foolish or that America has too many lawyers with not enough to do. Even in its relatively short life the case has excited the blogosphere and the conspiracy theorists. The right thing to do is to bring it to an early end."

--U.S. District Court Judge James Robertson, on the latest suit challenging President Obama's natural born citizenship (via Ben Smith.

"Editorial: Texas GOP senators gain advantage on voter-ID bill"

The Fort Worth Star Telegram offers this editorial.

"What About a 'Do-Over' in Minnesota?"

CQ Politics explores.

Mark Bell on Districting, Apportionment, and "Getting the Math Right"

See here and here.

"Long Litigation in Minnesota Senate Race Spurs Bid for FEC Approval of More Funding"

BNA Money & Politics Report offers this report.

Agenda for 3/11 Senate Rules Committee Hearing on Registration Issues

Here is the witness list:

Stephen Ansolabehere
Professor, Department of Government
Harvard University
Cambridge, M.A.

Kristen Clarke
Co-Director, Political Participation Group
NAACP Legal Defense and Educational Fund, Inc.
Washington, D.C.

Curtis Gans
Director, Center for the Study
of the American Electorate
Washington, D.C.

Jonah H. Goldman
Director, National Campaign for Fair Elections
Lawyers’ Committee for Civil Rights Under Law
Washington, D.C.

The Honorable Chris Nelson
Secretary of State, State of South Dakota
Pierre, S.D.

Nathaniel Persily
Charles Keller Beekman Professor of Law
and Political Science
Columbia Law School
New York, N.Y.

"FEC: Obama Mortgage a Legal Deal"

Politico offers this report.

"Documentary on Clinton Tests Campaign Finance Law"

The NY Times offers this report on the Citizens United case.. Bob Bauer comments on one of the briefs in the case.

Sen. Whitehouse Introduces Anti-Voter Caging Bill

See here. Unsurprisingly, it has 11 Democratic co-sponsors and no Republican co-sponsors.

"DOA: Voter ID, Early Voting and Sex Ed"

Talk about strange bedfellows.

"Franken Pushes to Toss Senate Lawsuit"

AP offers this report. MPR also has set up this helpful page for those tracking the Franken-Coleman contest.

"Gun Law Push Puts D.C. Vote Bill on Indefinite Hold"

I don't think a few weeks ago anyone expected this.

"Voters would have to prove citizenship"

AP offers this report, which begins: "Georgia is poised to become the second state in the nation to require prospective voters to prove they are U.S. citizens before they cast their ballot, as lawmakers passed tough new restrictions intended to crack down on voter fraud."

"RNC Lawsuit Seeks to Eviscerate Nation's Campaign Finance Laws and Bring Back Six and Seven-Figure Corrupting Soft Money Contributions to Political Parties"

Democracy 21 has issued this press release.

Senate Hearing on Voter Registration Problems

There will be a meeting of the Committee on Rules and Administration on Wednesday, March 11, 2009, at 10:00 a.m. in SR-301, Russell Senate Office Building, to hear testimony on "Voter Registration: Assessing Current Problems." When there is a witness listed posted, I'll link.

"Only Skin Deep?: The Cost of Partisan Politics on Minority Diversity of the Federal Bench"

Sylvia Lazos has posted this draft on SSRN (forthcoming, Indiana Law Journal). Here is the abstract:

This article explores the difficulties encountered in diversifying the federal bench and why the partisanship of the confirmation process decreases the diversity of viewpoints on the bench. Presidents value diversity in nominating judges. While Bill Clinton and George W. Bush had very contrasting political styles and judicial philosophies, the judges appointed by these two presidents now account for almost 80% of the current active federal minority judges. There has been progress in the area of descriptive diversity; currently 18% of the active federal bench is made up of minority judges according to data compiled from the Judicial Center. However, there is less diversity of viewpoints. Recent judicial behavioralist studies show that there is very little difference in the judging outcomes between white and Latina/o judges appointed by Presidents Clinton and W Bush. In hot button areas of civil rights, voting behavior of this cohort of white and minority judges is almost identical. This article posits that the unbridled partisanship of the confirmation process has resulted in less diversity among minority judges. Analyzing the confirmation wars of the W. Bush and Clinton administrations, this article posits that minorities face an additional burden in the confirmation process -- how they and partisan opponents depict a nominee's racial identity. Even if nominees do not trumpet their racial identity as a reason as to why they should qualify for ascent to the federal court, partisans will deploy meanings as to a nominee's racial identity as part of their strategy to either defeat or confirm the nominee. Minority nominees must perform a public racial identity that is appealing, and does not stir controversy. They must avoid triggering stereotypes that make them appear as being too liberal and therefore out of step with America; or conversely, of being too conservative and posing the threat of another Clarence Thomas. The article concludes that the confirmation process should not weed out diversity among minority voices, just as the process should not weed out judges who are too conservative, too gifted, or too prone to write down their thoughts.

Justice O'Connor Briefly Discusses the Media Circus Surrounding Bush v. Gore in Daily Show Interview

See here.

Goldfeder on "The 17th Amendment and Vacant Senate Seats"

See here.

"Supporters Push to Save D.C. Vote Bill In U.S. House"

This fascinating article in the Washington Post explains how gun politics, and pressure through the NRA's rating system, is affecting the D.C. vote:

The immediate issue in the House is the parliamentary rule for the bill. Such a rule -- which sets out the terms for debate and possible amendments -- usually must be agreed upon before taking up the bill itself.

Supporters of the vote bill had assumed Democrats would use their majority power to pass a rule that would bar gun amendments.

But in an unusual move, the NRA told lawmakers that it might score their votes on the rule for the D.C. bill, Norton said. That means representatives could be recorded as casting an anti-gun vote if they approved a rule blocking amendments on the D.C. vote bill.

"Speech or Debate Clause May Have Been Violated in Prosecution of Ex-Rep. Rick Renzi"

BNA Money & Politics Report offers this report ($).

"Senators Seek Line Item Veto for Obama"

Politico offers this report.

"Alabama no longer needs voting rights supervision, Gov. Bob Riley says"

The Birmingham News offers this report. You can find Gov. Riley's NAMUDNO brief here.

"Let's give instant run-off voting a chance at the polls in Chicago"

Eric Zorn has written this column for the Chicago Tribune. Rob Ritchie touts its benefits in Burlington, Vermont.

And in Jocelyn Benson News....

Prof. Benson has now posted Voter Fraud or Voter Defrauded? Highlighting an Inconsistent Consideration of Election Fraud on SSRN. She has also announced that she is running for Michigan Secretary of State.

Caperton Post-Argument Roundup

Howard has it here. Pithy Dahlia: "Come to think of it, this is Justice Kennedy's dream case. There's a huge problem. (Judicial elections are undermining judicial integrity.) There is virtually no precedent or statutory guidance. Someone will have to make some shit up. The court appears split 4-4. And it's all about appearances. Start the presses! The 'sweet mystery of judicial integrity' passage practically writes itself!" And Bob is mystified by the Chief's McCain-Feingold references.

Does the Minnesota Recount Court Have The Authority to Order a New Election?

Some interesting analysis by Guy Charles (via Eric Black).

More on Capterton

Oral argument transcript.

Lyle Denniston

Brad Smith and Jeff Patch (WSJ)

ABC

Tony Mauro

More to come.

Is Justice Kennedy Looking for a "Judicially Manageable Standard" in Capterton?

Sounds like it. Let's hope he does a better job than last time.

"Is Coleman v. Franken headed for a re-do?"

Eric Black sees it as Coleman's Hail Mary pass.

Bauer on Caperton and Judicial Reform and "Independence"

See here.

Required Reading for the Minnesota Judges

Now that Coleman's lawyers have asked for proportionate reduction and the potential setting aside of the election (see also here), I recommend that the judges read the most careful, balanced article I know on the subject of post-election remedies, Steven Huefner, Remedying Election Wrongs, 44 Harv. J. Legis. 265 (2007).

"Ballot information omits Proposition 1A tax extensions"

The Sacramento Bee offers this very interesting report, which begins: "If voters rely solely on ballot arguments when deciding in May whether to pass a constitutional limit on state spending, they will miss the fact that the measure also would extend higher sales, vehicle and income taxes by up to two more years."

In other ballot proposition news from California, 58% of voters in the latest Field Poll favor the top two primary. See page 41 of this pdf..

"Olson Argues Against Campaign Spending In One Case, Sees It As Protected in Another"

BNA Money & Politics Report offers this report ($).

Pre-Argument Opinion and Analysis in Caperton

Howard rounds it up.

Colbert the Key to DC Voting Rights?

See here.

"Culture of conspiracy: the Birthers"

Ben Smith writes on those who continue to believe President Obama is not eligible to be president.

"Corruption Bill's Bipartisan Moment May Be Coming"

Don't miss Eliza's latest.

"Despite what you may hear during the Senate contest, Minnesota isn't Florida"

David Schultz has written this piece for Minnpost.com.

More Capterton Stories

Howard rounds them up.

Citizens United: Constitutional Avoidance as a Way Out?

I've read through the briefs in the Citizens United case, which will be argued later this month before the Supreme Court. I'm preparing a preview of the case for the ABA Supreme Court Preview, and I'll be posting a copy of the preview at this blog when it is ready. In the meantime, I wanted to flag an interesting legislation issue in the case.

Here's some very brief background on the case, with more to come later. An ideological corporation, Citizens United, which takes for-profit corporate funds, produced an anti-Hillary Clinton documentary. It wanted to air it during the presidential primary season through a cable television "video-on-demand" service and to advertise for it on television. In exchange for a $1.2 million fee, a cable television operator consortium would have made the documentary available to be downloaded by cable subscribers for free "on demand" as part of an "Election '08" series. BCRA (McCain-Feingold) bars certain corporate-funded television broadcasts, such as this documentary, in the period before the election and requires disclosure by the funders of election-related broadcast advertising, such as these ads.

Under one of BCRA's "electioneering communications" provisions, a corporation or union cannot pay with treasury funds (though it can use a PAC) for a broadcast that features a candidate for federal office, is broadcast to be able to reach at least 50,000 people in the relevant electorate, and is shown within 30 days of a primary or 60 days of a general election. Citizens United argues that it is unconstitutional to ban its corporate-funded documentary. It raises a number of arguments, including the provocative argument that the Court should overrule Austin v. Michigan Chamber of Commerce, and allow all corporate-funded election-related advertising in federal candidate elections. That's a pretty tall order. Though three Justices (Kennedy, Scalia, and Thomas) have voted repeatedly for Austin to be overruled, Chief Justice Roberts and Justice Alito thus far have moved more cautiously in the campaign finance cases. In each of the campaign finance cases decided by the Roberts Court, the Court has sided with those challenging the law, but has done so in an incremental way. In this case, the question of overruling Austin was not presented in the lower court and did not appear in the Supreme Court until the merits stage, when Ted Olson took over for Jim Bopp.

So if Chief Justice Roberts and Justice Alito want to side with Citizens United, but they don't want to take the dramatic step of overruling Austin (at least not yet), there's a statutory/regulatory path to do so. The FEC has construed BCRA in its own regulations to apply to "video-on-demand" cable broadcasts. In footnote 2 of Citizen's United's brief on the merits, Citizens United suggests that the Court construe the statutes and regulations so as not to cover "video-on-demand." The technology certainly is different from the usual way that cable television works: to see Hillary: The Movie, someone would have to be doing more than channel surfing or inadvertently seeing a campaign ad while watching The Office. Someone has to affirmatively select the video to download and watch, which is not all that different from watching it on the Internet (unregulated) or ordering and watching the DVD (unregulated). Citizens United also makes much of the means of delivery, and how a single signal from the cable company to a viewer's cable box will be seen by a handful of people, and not the 50,000 persons mentioned in BCRA's electioneering communications provisions.

In support of the statutory argument, Citizens United raises the canon of "constitutional avoidance." Roughly speaking, if a statute has two reasonable interpretations, construe it in a way that avoids creating constitutional problems. What is interesting here is that Citizens United gets an assist on this point from BCRA's sponsors, Senators McCain and Feingold, and Representatives Shays and Meehan, whose amicus brief argues against Citizens United's positions, but argues as a backup for the statutory solution. The sponsors obviously would prefer a narrow statutory holding on "video-on-demand" rather than a constitutional holding in favor of Citizens United.

The statutory/regulatory argument may provide just the narrow way out that Chief Justice Roberts and Justice Alito could be looking for. There's just one problem with it. It was not raised by Citizens United in the Court below, a point that Citizens United's brief forthrightly admits. The reason for this is probably a difference in strategy between Citizens United's former lawyer, Jim Bopp, and his current lawyer, Ted Olson. Bopp wants the court to reach the constitutional issues as a way of undermining the edifice of BCRA. Olson apparently wants to secure a win, whether it breaks new constitutional ground of not. (Along similar lines, Bopp expressly took the MCFL issue out of the case in the district court by stating that its group took for-profit corporate money. But now Olson is trying to argue that Citizens United should be entitled to an MCFL exemption. Jim Bopp's strategy at the time appeared to be to expand WRTL II for all corporations, not to expand the scope of the MCFL exemption.) So Olson now may be hoping that the principle of constitutional avoidance can get the Chief and Justice Alito over the fact that the statutory/regulatory issue about "video-on-demand" was not raised in the district court.

UPDATE: Bob Bauer comments.