Justice Souter and Senator Specter

Assuming the reports of Justice Souter's expected retirement at the end of the term are true, there will be much time later to reflect on Justice Souter's important election law decisions, from his dissent in Bush v. Gore, to his views on racial and partisan gerrymandering, to his important decisions under the Voting Rights Act. (Indeed, it could well be that his final decision on the Court will be a dissent in a decision striking down section 5 of the Act as unconstitutional). I've even written an entire article on Justice Souter's important campaign finance jurisprudence, and his views of political equality and political money.

But my first thoughts are about the Senate confirmation process for his successor, and the uncertainty that now arises with Senator Specter's changing of parties. Senator Specter has been the ranking minority member of the Senate Judiciary Committee, and with his change to a Democrat, it could be Senator Grassley or someone else who takes as ranking minority member. This can affect both timing and who President Obama might choose.

On timing, it is going to take some time for the new ranking member to set things up. There could be delays in getting the vetting process open, and Democrats will be hard pressed to rush the process given that it is Specter's departure that caused the delay. Of course, the more controversial the candidate, the more time Republicans are likely to take. (The resolution of the Franken-Coleman matter could also play into things.) But it is not a given that, even if the President nominates someone promptly, that the person will be seated the first Monday in October.

There's another connection between Justice Souter and Senator Specter as well. Both were Northeastern liberal Republicans. Just as Senator Specter leaves the party, Justice Souter does so too, in his own way, not following a common tradition of Justices who try to retire during the term of a President of the same party who appointed the Justice. Justice Souter is one of the most liberal members of the Court; he likely feels no more at home in the Republican party now than Senator Specter.

A Development That Could Be Good News for Real Bipartisan Support in the Senate for Election Reform

Here. Check out what Trey Grayson's been up to.

Could Congress Moot NAMUDNO By Passing the Proactive Bailout Amendment Now?

Here's an admittedly crazy thought.

When Congress was considering amendments to the Voting Rights Act in 2006, there were a number of proposals by academics to fix the Act. In my testimony before the Senate Judiciary Committee, I noted four possible fixes to help preserve the measure's constitutionality, including updating the coverage formula, proactive bailout, a shorter time period for renewal, and being more careful about reversing Georgia v. Ashcroft.

In terms of proactive bailout, I pointed to Mike McDonald's excellent contribution to The Future of the Voting Rights Act book discussing such a proposal. I then pushed proactive bailout publicly, offering a specific draft amendment (followed up by others' suggestions for improvement)and a Roll Call oped. In the strange bedfellows department, Rep. Westmoreland offered my amendment, which went down to defeat. When it was defeated, I wrote (on July 13, 2006): "I will now just worry that Justice Kennedy, the likely swing voter when VRA reauthorization ends up back before the Supreme Court, will look at the defeat of the bailout amendment as evidence that Congress has not taken seriously its admonition in the new federalism cases and his voicing of concern over the use of raced based remedies in a series of cases culminating with LULAC. I very much hope to be proven wrong about the Supreme Court." (Westmoreland, in contrast, was happy his amendment failed, for the same reason as I was upset.)

This is some longwinded history to my current point. If Congress passed the bailout amendment now, it could moot the case before the Supreme Court, and forestall damage potentially beyond section 5 that an opinion striking down section 5 could cause.

If Democrats and the civil rights community got behind this, it is hard to believe that a measure that alleviates the burdens of the VRA would be filibustered by Republicans in the Senate.

Am I crazy?

The New Electionline Weekly

It is now available, including a Director's Note remembering John Gideon.

The Banking Crisis, Lobbying, and Public Financing for Congressional Races

Ciara Torres-Spelliscy connects the dots.

Initial Thoughts on the Coleman Brief

You can find the brief here. I have now had a chance to give the brief a very quick first read, and I'm ready to offer some tentative thoughts (subject to revision as I study the brief more closely in the coming days). Here's the headline: Coleman's appellate arguments are the ones I anticipated when I read the trial court's decision. I continue to believe his equal protection argument is unlikely to be accepted by the Minnesota Supreme Court, but his arguments are not frivolous and will require careful attention from the Minnesota Supreme Court.

Here are some more detailed observations:

1. Coleman devotes virtually his entire brief to a single argument: it is a constitutional denial of equal protection and due process for Franken to be elected under a procedure that treated some absentee ballots under a looser "substantial compliance" standard and other ballots, during the election contest itself, under a tougher "strict compliance" standard. Coleman lays out three possible remedies to these purported violations: count more absentee ballots under the looser "substantial compliance" standard, throw out ballots that benefitted Franken under a uniform "strict compliance" standard, or declare there is no winner and require a new election. (He also makes a half-hearted argument for proportionate reduction, though it is not clear how that helps him.) Coleman emphasizes the first of these remedies.

2. Part of the reason that Coleman's battle is so uphill is that there are some important precedents and statutes against him. There are Minnesota precedents followed by the trial court holding that absentee voting is a privilege and not a right, and therefore the usual "substantial compliance" rule applied to Minnesota election statutes does not apply; there are precedents saying that failure to object to absentee ballots before they are counted waives any objections (a variation on my laches point, given that once an absentee ballot is counted, it can't be taken out of the count because no one knows who the voter chose); and the Minnesota contest statutes do not allow for the remedy of a new election. (If that latter remedy is imposed, it will have to be as a matter of constitutional law.)

3. Though Coleman tries valiantly to distinguish precedents, he's got a harder battle not only because arguing for a change of law is hard: if the court changes any of these laws now, it offers Franken an equal protection argument under Roe v. Alabama (as I've explained). Coleman tries to rely on Roe, but it seems to me that the trial court followed, rather than changed, existing law, making Roe inapposite for Coleman's argument.

4. I have a lot of sympathy for Coleman's argument for a substantial compliance standard for absentee ballots, for reasons I've explained in this forthcoming paper. I'd love to see the Minnesota Supreme Court prospectively change the rule, so that it matches the majority of other states, in treating absentee voting as a right and not a privilege, and therefore applying the "substantial compliance" rule to absentee ballots statutes as well. But the court cannot do so now, in the middle of the election, without giving Franken the due process argument from Roe.

5. The problem with the local deviations point that Coleman raises, is the laches point: "To the extent that different boards have different policies and standards for deciding which ballots are entitled to be counted under the state absentee ballot statutes, that's an issue that could (and in my view, usually must) be dealt with before an election (or before absentee ballots are considered for counting) rather than after. To allow the claim after gives an election contestant an impermissible option: if the count favors me, don't raise the potential problem. If it works against me, raise it later. To avoid post-election litigation, I've suggested courts should be open to challenge these problems pre-election, and bar such claims after the election as too late (under the doctrine of laches). If that is right, any deviation in local policies, while potentially an enjoinable equal protection violation before the election under Ned's theory, cannot be the basis for a post-election remedy."

6. To the extent Coleman focuses on the argument that more ballots should be counted, does he have any evidence he can offer (perhaps from where those ballots come from) that the counting of such ballots will make up the 315 vote benefit of Franken? Has anyone tried to do such a calculation?

7. I cannot offer any opinion as to whether Coleman's brief accurately sets out the facts. I just have not followed this case closely enough to know whether the Franken team will be able to argue with the local variations as described in Coleman's opening brief.

Just in Time for NAMUDNO?

The NY Times offers No Race Gap Seen in '08 Voter Turnout.

Coleman-Franken: June 18 Decision?

That's more certainty than I am able to muster.

Katz: NAMUDNO, Ricci and Bush v. Gore

Ellen Katz sends along this guest post:

In his post yesterday, Guy Charles observes that several of the justices in NAMUDNO were animated by their deep suspicion of Congress. Neal Katyal and Debo Adegbile cited record evidence as supporting and justifying particular congressional findings and beliefs, but these claims rang hollow to Justices convinced that Congress made no actual findings and held no actual beliefs beyond a conviction that it would reauthorize this thing no matter what. The record, in their view, was assembled not to inform and guide decisionmaking but instead to justify a preordained result. Observe Justice Scalia's query to Debo: "Do you ever seriously expect congress to vote against a reextension of the Voting Rights Act?"



Guy rightly links this skepticism about Congress with suspicion the Justices voiced last week in the New Haven firefighters case where several of the Justices seemed convinced that New Haven couldn't be trusted to assess whether the disputed test was a BFOQ, because these Justices believed the city was going to throw the test out once the racially disparate impact was identified. A particular racial outcome was desired and it was going to be achieved, no matter what, or so some Justices seemed to believe.


If a majority of the Justices pursue this line of thinking, both Ricci and NAMUDNO are lining up as plausible sequels to Bush v. Gore, decisions in which the Court so mistrusts a democratically accountable actor that it denies that actor the deference that it would seemingly otherwise be due. In Bush v. Gore, this sentiment manifested itself not in the substantive equal protection holding, but instead on the question of remedy, namely the Court's refusal to remand the case to the Florida Supreme Court. In both Ricci and NAMUDNO, judicial mistrust is more likely to shape the substantive holdings-- in Ricci, by racheting down the amount (and perhaps whole eliminating) race consciousness as a permissible consideration under the Equal Protection Clause, and in NAMUDNO, by racheting up dramatically what Congress must show before reauthorizing (and possibly enacting) civil rights legislation.

Coleman-Franken: Today the Rubber Hits the Road

Today's Star-Tribune story reminds us that Coleman's brief is due today in the Minnesota Supreme Court. At this point, the posturing will take a back seat to legal analysis of the arguments raised in the brief.

When the brief is posted I'll link, and after I've read it I'll provide some analysis. My guess is that it does not come in until the end of the day.

What's to Become of the FEC?

Roll Call reports today that tomorrow there will be three open seats on the FEC (McGahn, Walther, and Weintraub), which Senator Obama can fill. I believe we need a fundamental rethinking of the FEC's structure and purpose, especially given the proliferation of 3-3 ties on party lines that I've been chronicling for the last few months. (There was another 3-3 split recently announced, involving a 501(c) organization).

I know that the Obama transition team had Mark Alexander (and perhaps Spencer Overton) looking into the question of the FEC's future. It will be interesting to see what happens.

NAMUDNO: The Answer to My Question Appears to Be "Yes"

My Slate commentary title posed a question that most observers now believe is most likely to be answered in the affirmative: a majority of the Court is likely to kill section 5 of the VRA, though some hold out hope of Justice Kennedy finding a way to forestall that event a bit or lessen its blow.

One thing that is clear to me is that if this case stands and falls on empirical evidence of intentional discrimination by the states, section 5 falls. Objection rates are inadequate both because their number is so low and because many of the objections were not interposed for intentionally discriminatory conduct. The Section 2 analysis also is methodologically questionable.

For section 5 to stand, Justice Kennedy would have to accept at least one of these three points: (1) empirical evidence cannot be gathered effectively, precisely because section 5 has been such a good deterrent, and any attempt to compare covered v. non-covered jurisdictions now is bad social science because, as Ellen Katz put it, one patient has undergone treatment and the other has not; (2) Congress is entitled to substantial deference, perhaps especially in the area of eradicating the effects of past discrimination; (3) preclearance is not all that burdensome for covered states, and the reason that more states have not tried to bail out is that submitting preclearance is cheaper than bailing out.

Justice Kennedy, however, in his questioning seemed to reject all of these arguments. He repeatedly called for comparative statistics, he stated that deference was not appropriate given the high federalism costs (the "lesser sovereignty" of Alabama), and his belief that the law imposes "substantial burdens" on covered states. My sense (channeling my inner Rick Pildes) is that these burdens are as much expressive harms as real financial burdens: the federal government is sending a message that these covered states are less entitled to their full sovereignty than other states.

Though I agree with Nate (linked below) that Justice Kennedy may not want to be the one to cause the headline: "Supreme Court Kills Voting Rights Act" (or, more accurately, kills section 5), he sure seemed more disturbed by the prospect of letting the law stand.

I have been warning about the problem with a straight-out preclearance for years, but the civil rights community decided to roll the dice, and got Congress to go along with them. I really thought my proactive bailout amendment would have helped a tremendous amount toward preserving section 5's constitutionality.

In terms of additional analysis, addition to commentary linked yesterday (here and here), Howard links to the major news stories. Here are a few that Howard did not yet pick up:

Rodger Citron (Findlaw)

Nate Persily

National Law Journal

Atlanta Journal-Constitution

The Hill

Text and History

"Statements from CA Sec. of State Debra Bowen and Former U.S. EAC Chair Rosemary Rodriguez on the Passing of John Gideon"

See here.

Cox on NAMUDNO Argument

Adam Cox sends along the following guest post:

The NAMUDNO argument did not go well for defenders of the Act. As Heather Gerken, Ellen Katz, and others have pointed out, the Justices spent a tremendous amount of time asking for comparative evidence--that is, evidence that intentional discrimination is a more significant problem in covered than non-covered jurisdictions. Neal Katyal tried hard to resist this approach, arguing that the Court should ask only whether things are bad enough in Texas to warrant Section 5's coverage there. But time and again Justice Kennedy said that he was worried that Congress didn't do enough to compare voting practices in covered with non-covered areas.


The demand for comparative evidence reflects a basic mistake that several folks have pointed out on the listserv. If Texas doesn't look so bad relative to other states, there's no way to know whether that's because discrimination isn't a problem in Texas, or instead because discrimination is a problem but Section 5 is an effective deterrent.

Even if we put aside that problem, however, both the Court and the lawyers repeatedly got the comparative evidence plain wrong during argument. More than half a dozen times, data from Section 2 lawsuits were cited as comparative evidence showing that discrimination is worse in covered than uncovered jurisdictions. Counsel for the intervenors said that these lawsuits were the "best evidence" that things were worse in the covered jurisdictions, and Justices Souter, Breyer, and Ginsburg relied repeatedly on these data as important empirical support for the Act. The problem is that the data from these lawsuits simply do not support the conclusion that discrimination is worse in covered than uncovered jurisdictions.

The Section 2 lawsuit data discussed during the argument were part of a report submitted to Congress. That report argued that the data demonstrated higher levels of discrimination in the south because, from 1982 to 2005, the success rate of section 2 suits in covered jurisdictions was higher than the success rate of litigation outside covered areas. But as Tom Miles and I have explained here on Rick's blog, in a Columbia Law Review article, and in a colloquy with Ellen Katz, who authored the original report, the data do not support any comparative claims about the South.

I won't retrace all of our discussion here, but I think it's important just to note the three central reasons why the data can't do the work that the lawyers or the Court might want them to do. First, while a summary comparison of lawsuits in covered and uncovered jurisdictions does suggest a disparity in success rates across covered and uncovered jurisdictions, this difference disappears when we run regressions to control for factors other than coverage itself. In other words, once we control for other variables (including, importantly, the identity of the judges), there is no statistically significant difference between success rates in covered and uncovered jurisdictions.

Second, and most fundamentally, it is a mistake to interpret differences in litigation success rates across jurisdictions as evidence of differences in the underlying levels of discrimination. The central methodological difficulty with drawing inferences about the extent of discrimination from litigated Section 2 cases is that the sample of cases is almost surely not representative of the entire class of voting rights claims. This is a problem that is so pervasive that it has a label among empirical scholars--it is known as the "Priest-Klein" problem. And fancy monikers aside, it is the intuitive reason why no one thinks that the success rates in tort lawsuits in Illinois are a solid source of information about the level of tortious conduct in the state, and why no one thinks that conviction rates in criminal cases in New York are a meaningful measure of the state's crime level.

Third, even if we ignore these selection problems, the data quoted at oral argument are problematic because they mask a trend. The Section 2 study surveyed a two decade period and identified a difference between covered and uncovered jurisdictions over that period. But an average difference over two decades does not fit the conclusion that a difference justifying Section 5's reauthorization remains today. And, in fact, the Section 2 data reveal that success rates in covered and uncovered jurisdictions have converged over time. In the 1980s and early 1990s, courts in covered jurisdictions were indeed more likely to find liability than courts in uncovered areas. But from 1994 to the end of the study in 2004, plaintiff success rates were nearly identical in covered and uncovered areas.

Tom and I do not believe that the convergence of success rates in recent years means that discrimination is no worse today in covered than uncovered jurisdictions. As we have emphasized repeatedly in our work, the success rates in Section 2 litigation are simply not a good measure of discrimination. Accordingly, our analysis should not be used to suggest that things are no worse today in the south than anywhere else. Conversely, however, the data discussed during the argument are not evidence of the opposite; they cannot provide the comparative evidence that things are still worse in covered jurisdictions. Much as the Court might like them to, these data can't help resolve the question of Section 5's validity.

Adam Cox's post repeats a series of claims to which I have already repeatedly responded, both on this blog and elsewhere. See here , here, and here.

"Would a Pa. GOP Voter Have a Cause of Action Against Arlen Specter?"

The WSJ Law Blog muses.

Some Initial News Stories and Analyses of the NAMUDNO Oral Argument

SCOTUSblog

AP

Blog of the Legal Times (Tony Mauro)

LA Times

Reuters

USA Today

Heather Gerken

Guy Charles

Ellen Katz

Allison Hayward

More links tonight or tomorrow.

NAMUDNO Transcript Now Available

You can read it here.

Live-Blogging the Oral Argument in NAMUDNO: VRA in Trouble

My initial impression is this:

I am often accused of being a "Chicken Little" when it comes to the Roberts Court and voting rights. But so far I have no reason to retract my pessimism. I think the best that supporters of section 5 can hope for is a controlling opinion by Justice Kennedy, perhaps speaking only for himself, finding a way to read the statute to allow bailout and ducking the constitutional question. I still think that is unlikely. The more likely scenario is 5 votes to strike down the Act. Chief Justice Roberts, and Justices Alito, Scalia and (presumably) Thomas are surely there. Justice Kennedy expressed considerable skepticism of the federalism costs and "substantial burdens" being imposed on some jurisdictions but not others, without adequate comparative evidence that such laws are still necessary. If this happens, it could well be that congress comes back to write a new (and perhaps even better) Voting Rights Act. But, as I noted in my Slate piece, depending on how the Court writes its decision, Congress's ability to maneuver in this area could be constricted.

Below is my live-blogging of the released audio. Some of the quotes may not be accurate. The transcript, when released, will be the best source of information.

8:44
Coleman is up for the challengers.
The Justices appear not to be buying the statutory argument for bailout. Justice Kennedy notes practical problems with doing so. (This is what I expected what would happen with the statutory argument.)

8:49
Kennedy and Souter question whether the MUD has standing to raise the bailout point.

8:50
Lyle is putting up his post in progress (he's had the advantage of hearing the entire argument live). He thinks the Court may expand the bailout provision. So perhaps the discussion is going to turn in this way.Lyle says that Kennedy appears to be the swing vote.

8:53
A knowledgeable observer who attended oral argument writes that things look "bleak" for the VRA.

8:57
In answering Justice Souter's point that there's still a strong empirical evidence of discrimination, Coleman seems to say that section 203 (the language provisions) and Section 2 are in fact constitutional, in contrast to section 5. He seems to be giving a way for the Court to strike down section 5 without endangering the rest of the statute (my Slate piece states the belief that an opinion striking down section 5 could not be so easily cabined).

9:00
Justice Breyer does a thorough job comparing the evidence that was enough for constitutionality in City of Rome with the evidence in this case.

9:02
Important discussion: Kennedy asks if there was any control or comparative data, comparing covered jurisdictions and non-covered jurisdictions. He says that would be a key to the constitutionality. He asks about Congress or the three judge court.
Coleman responds by pointing to Ellen Katz's section 2 differential study (whose relevance has been debated among election law scholars).

9:04
Coleman attacks the old coverage formula. Justice Ginsburg asks for other coverage formula. Coleman says that using the old formula in modern times, only Hawaii would be covered.

9:07
At the end of Coleman's argument (before rebuttal), there is a discussion of objection rates.

9:08
Katyal is up for the government.

9:10
Chief Justice Roberts points to the low objection rates and says that there are such low objection rates, that the law appears to be sweeping too broadly, and it is not congruent and proportional. Katyal says that the law is a good deterrent. He says Coleman testified, making these arguments, and Congress rejected them, seeing it as a good deterrent.

In response to Scalia mentions an "elephant whistle" that keeps the elephants away. How do we know if it works? Scalia says that Katzenbach was a long time ago, and that things have changed.

9:11
J. Alito asks if Congress would have had the power to extend section 5 to the entire country. Katyal says no. Katyal said there was specfic evidence found by Congress about Texas.

Alito mentions the difference between Latino and white registration, at 18%. Not good, but not as bad a disparity as in California.

Katyal said that it is the difference in rates, plus historical record of discrimination.

Scalia: At what point does the history stop being relevant?

9:15
This appears to be a key exchange:
J. Kennedy asks whether Congress has the power to say that these covered jurisdictions have less sovereignty than other states. Minority opportunity districts protected in some states but not others. He says it is a "substantial burden" that this is constitutionally permitted.

The question is whether the Act should be continued now---it is not whether it was once required.

9:20
Scalia says bailout is too tough. Only a few jurisdictions in Va. bailed out. This shows that the act is too tough. He suggests it is an incumbent protection benefit. Everyone who voted for it was elected under this system.

9:22
Howard links to this early AP report, which seems to see things as Lyle does: Kennedy holds the key vote, and he's quite skeptical of section 5's constitutionality.

9:23
Kennedy indeed seems quite skeptical; this is a surrendering of power. Katzenbach stands for the proposition that defiance was the key to upholding the initial section 5. No more defiance.
I would say that this does not look good for section 5. This is exactly what I've been feared.

9:25
Scalia, Alito, Roberts, and presumably Thomas to strike down. That's very clear. Souter, Breyer, Ginsburg, to uphold. Have we heard anything significant from Justice Stevens? As I wrote in my Slate piece: "But it is not altogether clear that Kennedy will determine the court's ruling. As a Reagan lawyer in 1982, now Chief Justice Roberts spearheaded the efforts of that administration to prevent expansion of the Voting Rights Act. In a 2006 case on controversial Texas re-redistricting, Roberts remarked in putting forth a narrow reading of the act that it is 'a sordid business, this divvying us up by race.' Justices Alito, Thomas, and Scalia have all lined up on the same side. More surprisingly, perhaps, even Justices Stevens and Souter may not vote to uphold Section 5. In a Section 5 case the court decided last year, the two issued an opinion stating that "it may well be true that today [Section 5] is maintaining strict federal controls that are not as neces­sary or appropriate as they once were.'"

9:28
Another key exchange with Kennedy:
The fact that bailout may not be working well "gives me serious pause."
There's a discussion of the bailout amendment that I had suggested in 2006. Katyal says Congress rejected it because of the need for deterrence.

9:32
Adegbile is up. Roberts asks if there is more discrimination in the South than in the North? Adegbile tries to thread the needle.

9:36
Ginsburg says 25 years may be right, picking up from the Michigan school case from a few years ago. Adegible: there was a more specific reason: to cover more redistrictings.

9:38
Breyer: why didn't Congress update or change the formula?
Adegbile: Did state by state analysis.
Alito: Is there more discrimination in Virginia compared to North Carolina or Tennessee? (I may have my states wrong?) Scalia mentions the first black governor, and black Chief Justice of the Supreme Court. Adegbile: there have been African Americans to rise to high office, but a single person rising to the seat has a salutary effect, but does not change the situation on the ground. Points to racially polarized voting and election officials manipulate the rules of the game for voting.

Kennedy points to the NAACP brief and the Persily brief. They make good points. But my concern is that Congress did not address this to the rest of the country.
Return to the Katz section 2 study.

9:43
Roberts says that the section 2 standard does not show intentional discrimination, and that it is not enough. He returns to the very low objection rate.

9:47
Nate Persily emails:
"To the extent Kennedy was signaling anything, it was not receptive to the vra. He seemed to take the federalism costs as being significant. I could also envision some fractured decision that leads to some ultimate resolution along the statutory argument.

"If the Court strikes down the coverage formula though, this might be an example of "be careful what you wish for" for the law's opponents. The Dems now have the opportunity to write the VRA that they want rather than the one they could pass. This could open up the policy window for all kinds of stuff to come in (voter reg reform, felon disfranchisement, etc.). At the same time, if this decision changes the constitutional test for protecting voting rights, it makes litigation against federal election laws ever more likely."

9:48 Coleman rebuttal
Stevens: Why is it relevant that there are states out there that are not covered? Is this the first Stevens question? I'll have to check the transcript.
From the question, Stevens sounds like a likely vote to uphold the law, but it is not clear.

Coleman: Need comparative data to prove that this is constitutional.

NAMUDNO Oral Argument Link

It appears the case audio is about to be broadcast here.

The Prospect of a Federal Lawsuit Continues to Rear Its Head in Minnesota

Eric Black: "[Wash. U. Professor Steve] Smith had one technical prediction. Just before the Supreme Court rules, Coleman's legal team may file a fresh lawsuit in federal court based on its federal constitutional arguments. Most legal scholars agree that a separate federal action should not have any impact on the issuance of the state election certificate. But if such a case is filed, said Smith, Pawlenty could at least claim that he has to wait to see if the federal courts have a different view of the matter or whether a federal judge might issue a stay."

"State Joins Electoral College Pact"

Washington State become the latest state to enact the NPV.

Expect the national media to pay attention when the number of electoral votes goes over half needed for it to take effect, or perhaps when it reaches over 200 EVs in play.

Republican FEC Commissioners and 100.22(b): It is Worse Than I Said

Don't miss this post from Steve Hoersting, who notes: "To put it in the language of WRTL II, however, a cursory review of 'the four corners' of footnote 30, 'with limited reference to [the] context' of Hasen's comments may leave readers 'no other reasonable interpretation other than' to believe the Republican Commissioners are four-square behind the validity and enforcement of 11 CFR 100.22(b). This is not so. The Republican Commissioners address 11 CFR 100.22(b) only arguendo in the AJS matter, and promise a more thorough statement on the validity of 11 CFR 100.22(b), or lack thereof, in the near future. We at CCP, among others we’re sure, look forward to reading it."

Translation: We may now have three commissioners who will refuse to enforce section 100.22(b) on grounds that it is unconstitutional. More at BNA ($).

Final Pre-Argument NAMUDNO Roundup

You want links? Howard has links aplenty. Abby Thernstrom, Pam Karlan, and Rick Pildes wrote about the case at an online forum at the NY Times. All three contributions are well worth reading.

See also this Washington Post editorial. In that editorial, the newspaper board writes: "Republicans, including former Senate Majority Leader Bob Dole and former attorney general Richard L. Thornburgh, filed a brief that makes a compelling case for upholding Section 5. It notes that between 1982 and 2006, often under Republican presidents, the Justice Department rejected 700 requests for voting changes from covered states after concluding that they were discriminatory." Although I remain a supporter of the constitutionality of the Act, I've written why I believe that reliance on DOJ objections to prove unconstitutional discriminatory intent is problematic. (The challengers to the law cited my research on this point in their briefs.)

More after I have had a chance to listen to the audio of the argument.

"2nd Circuit Upholds Repeal of New York City's Term Limits"

So reports Ballot Access News.

"All Voters Welcome: The Voting Rights Act must still hold open the doors to the polling place."

Gerry Hebert has written this NAMUDNO commentary for the final stand-alone issue of Legal Times.

"Weighty Considerations: Facial Challenges and the Right to Vote "

Nihal Patel has written this student comment for the Northwestern University Law Review. Here is the abstract:

In 2008, the Supreme Court stressed the difference between "facial" and "as-applied" review in a number of important decisions. Although this reasoning was not new (there were a number of cases under the Rehnquist Court addressing this issue), the Roberts Court has taken a more "minimalist" or hard-line view that facial review is almost never merited. The approach stands in contrast to the 2004 decision in Sabri v. United States, in which the Court recognized that deviation from the usual approach to facial review could be made on the strength of "weighty considerations."

This Comment argues that the Court''s increased emphasis on the use of as-applied litigation needs to be tempered to recognize contextual considerations that make facial review more appropriate. In particular, I focus on the right to vote as the key example of a situation where, among other things, the right at stake, the need for timely review, and the lack of clarity in the field support facial review.

"Activists, bloggers rip DCCC, DSCC"

Politico offers this report.

Gerken on NAMUDNO and Katz

See here.

More on the FEC, the 100.22(b) standard, and WRTL

Following up on this post, check out the Republican Commissioners' statement of reasons in the Americans for Job Security case. See especially footnote 30, where it looks pretty clearly to me that the 100.22(b) test is being read in light of WRTL. (Check out fn. 1 as well, which slams Public Citizens' lawyering.) The Democratic Commisioners' statement is here.

"Washington's Best Kept Secret: McCain-Feingold Works"

Meredith McGehee has this post at the CLC Blog.

"Sen. Arlen Specter quits GOP, upping stakes in Coleman-Franken dispute"

The Star-Tribune offers this report.

Katz: Reports of my transformation are greatly exaggerated

Ellen Katz sends along the following guest post:

Rick links to today's NY Times article on NAMUDNO, and suggests that my views on the constitutionality of Section 5 have changed. Not so.

In the piece, Adam Liptak quotes me to say that Obama's election "arguably presents the moment when Congress should close out this regime." My point is not that Obama's election shows that Section 5 is no longer needed. Indeed, it is my view that the evidence we have about the election offers grist for both sides of the debate.

Instead, my point is that Congress, not the Court, must evaluate this evidence in the first instance, and that the Court should find a way to send this matter back to Congress for such consideration.

Just to be clear, I think that the Act was validly passed in 2006 - in part based on a record to which I have contributed. But I also think that Obama's election is not an event that can or should be ignored.

As I said to Adam, Obama inexorably shapes how we understand Section 5 today. This is why I recommend that the Court take the unusual step of finding a way to make Congress take a fresh look at the law.

I explain my position, which has remained unchanged, in the National Law Journal.

Breaking News: Stakes Raised Markedly in Coleman-Franken Election Dispute

With the surprising news that Senator Arlen Specter is going to switch parties and run as a Democrat for reelection, the stakes have just gotten much higher in the appeal to the Minnesota Supreme Court in the Coleman-Franken Senate race.

Whether or not Specter formally caucuses with the Democrats, if he actually hopes to win a Democratic primary and be elected, he's going to have to go along with the Democratic program this term. This means that a Franken win would give Democrats a 60-seat filibuster proof majority, though some conservative Democrats (such as Senator Ben Nelson) likely will hold the Democrats back from enacting a fuller agenda.

For my take on where things stand with the Coleman appeal, see here, here, and here.

NAMUDNO: Ellen Katz's Transformation?

Don't miss this NYT preview of the NAMUDNO oral argument. The article is remarkable given Ellen's past defenses of Section 5's constitutionality.

See also this piece by Ed Blum in the Weekly Standard, this editorial in the Hattiesburg-American, Anne Lewis v. John Lewis in the AJC, this report at CQPolitics, and this BLT report on the recent AEI forum on the case.

My Slate preview is here, and those who want a trip down memory lane to 2006 can peruse my VRA renewal guest blogging series, featuring the legal scholars who've been thinking about these issues for years.

I plan to listen to the oral argument when the audio is released right after argument tomorrow, and post some thoughts later tomorrow.

"University study shows Americans favor early voting, voter ID"

The St. Louis Post-Dispatch has this story about this study by David Konisky.

Very Sad News: John Gideon has Died

Voters' rights advocate John Gideon has died after a sudden illness. The details are here. Our thoughts go out to his family and friends at this very sad time.

Just in Time for NAMUDNO

Nate Persily, who has written one of the key articles about the renewal of section 5 of the Voting Rights Act, has just posted two of his newest pieces on SSRN. This Minnesota Law Review piece (with Jennifer Rosenberg) discusses as-applied challenges and turns to NAMUDNO in the epilogue. This Supreme Court Review piece explains and assesses the Roberts Court's election law jurisprudence.

I've read both pieces in draft and they are highly recommended.

"Sordid Business: Will the Supreme Court Kill the Voting Rights Act?"

Slate has published my latest Jurisprudence essay. It begins:

Under the leadership of Chief Justice John Roberts, the Supreme Court has not been friendly to voting rights or reasonable campaign finance laws. But so far, its retrenchment has been incremental. The court upheld Indiana's strict voter-identification law without any evidence the law was needed to prevent voter fraud, but it left the courthouse door slightly open for voters who could show the law would impose a special hardship on them. A majority has sided with First Amendment challengers to campaign finance laws in all four campaign finance cases it has decided, but thus far it has not overturned the cornerstones of current law: federal contribution limits and corporate and union spending limits in candidate elections. The court has read the Voting Rights Act in increasingly narrow ways that undermine its effectiveness and did so again last month. But it has not held the foundational civil rights law unconstitutional. Yet.


On April 29, the last day of the court's term, the justices will hear a case from an obscure utility district in Texas, Northwest Austin Municipal Utility District No. 1 v. Holder. (The shorthand is NAMUDNO. The court will release audio of oral argument right after argument concludes.) At stake is not only the constitutionality of a key provision of the Voting Rights Act but, potentially, the constitutionality of a host of other civil rights laws. These include the requirement for the creation of majority-minority districts in cities and states with large minority populations and the guarantee of language assistance to non-English-speaking voters in jurisdictions with a fair number of them. The NAMUDNO ruling will come just before the next round of redistricting and could have a major effect on who wins in all kinds of races, from obscure utility districts to state houses to Congress.

Voter ID Compromise in Texas?

See here.

"Are Lobbyists Being Locked Out?"

Eliza's latest.

"Minnesota Poll: Most want Coleman to call it quits"

The Star-Tribune offers this report.

"Perdue argues against law, says times and state have changed"

The Atlanta Journal-Constitution offers this article on NAMUDNO.

"Before Census, A Debate Over Prisoners"

The Washington Post offers this report.

Feasby Guest Post on New Canadian Campaign Finance Decision

The following post is written by Colin Feasby, one of Canada's top legal experts on campaign finance regulation:

British Columbia Teachers' Federation et al v. British Columbia (A.G.,) 2009 BCSC 436.
Many observers were of the view that the question of third party election spending limits had been settled by the Supreme Court of Canada in Harper v. Canada, 2004 SCC 33. The Court held there that in the federal context third party spending limits were justified on egalitarian grounds and that the Court would defer to Parliament and not second guess the specific limits.
The BCTF and several other unions challenged British Columbia's provincial campaign finance law restricting third party expenditures. The law restricted expenditures during the campaign period (28 days prior to voting) and the 60 days prior to the campaign period.
The Court observed that BC's adoption of fixed date elections correlated with an increase in third party expenditures from 12% (2001 election) of political party expenditures to 120% (2005 election). The Court went on to observe that the third party expenditures were mostly made by unions and their advertising can be seen to mostly favour the position of the social democratic party, the NDP. The Court, however, declined to infer that the Liberal Government was in a conflict of interest or acted in bad faith in adopting the third party spending limits.
The Attorney General acknowledged that the restrictions violated s. 2(b) of the Canadian Charter of Rights and Freedoms ("Charter") which protects freedom of expression. Accordingly, the question for the court was whether the restrictions were justified and proportional. The Court followed Harper in finding that the legislative objective was pressing and substantial and that the means chosen were rationally connected to the objective.
The plaintiffs attacked the spending limits which were the same dollar value as the federal limits in Harper ($3,000 per district and in $150,000 aggregate). The plaintiffs led evidence showing that even modest advertising in print and broadcast media cost far more than the spending limits. The Attorney General countered by citing almost costless campaigning on the internet (Web 2.0 -- Facebook, Twitter, etc.) as being permitted and sufficient. The Court agreed with the Attorney General and held that the spending limits allowed for a reasonable informational campaign.
The Court departed from Harper on the question of overbreadth. The Supreme Court in Harper held that the law was not overbroad because third parties could advertise on issues not associated with political parties and candidates. The B.C. Court observed that the Supreme Court's view "does not accord with the reality of election advertising in this province. Practically speaking, it is not readily apparent when an issue is not associated with a candidate or political party." The Court went on to review the Liberal Party platform and concluded that "it is difficult to conceive of an issue that is not associated with the Liberal Party." The Court further noted that the Chief Electoral Officer's discretion to determine what was or was not election advertising was not "prescribed by law" and, accordingly, not an answer to overbreadth.
The Court went on to find that the extension of third party spending limits to the pre-campaign period was overbroad. During the 60 day pre-campaign period the Legislature was in session and important public business was done, including the Throne Speech and Provincial Budget. Third parties should be able to express their views on these important political events. The Court held, "[t]o curtail the ability of third parties to engage in political speech at that crucial time in the absence of any evidentiary or logical basis as to why it is necessary to do so is not a minimal impairment of freedom of expression."
The Attorney General has appealed and sought a stay given that there is presently an election underway in BC. The stay was denied and the third party spending restrictions are not in force during the current election (2009 BCCA 156: http://www.courts.gov.bc.ca/jdb-txt/CA/09/01/2009BCCA0156.htm). If the Liberals win the election, it can be expected that either the appeal will proceed or new third party spending limits will be introduced. If this case proceeds, it should be of interest to the Supreme Court of Canada as it tests some of the soft spots in the Harper decision.

More NAMUDNO Previews

Mark Posner has written this preview for the ACSBlog.

The Austin-American Statesman offers this report.

More NAMUDNO Previews

AP and SCOTUSBlog.

"Election Commission Loosens Up on Some Groups"

This post appears at the NYT's "The Caucus" blog.

"Supreme Court recount timeline called reasonable"

MPR offers this report.

Murphy Wins

See here.

"Reformers File in Challenge to Election Ad Disclosure Laws"

The CLCBlog reports.

Lessons from the FEC's 527 Decisions

Political GPS weighs in.

"Campaign fund diversion angers state GOP"

Interesting news from Maryland.

"Tedisco May Concede Election Today"

Political Wire reports.

The Fight to Keep Funding for Public Financing in Connecticut

See here.

Sec. Clinton Sells Her Presidential E-Mail List, for a Cool $2.6 Million, to Senator Clinton's Senate Campaign Committee

Politico reports .

Better Late Than Never (?) Dept.

The FEC has issued this press release on the recent 527 case file closings. For someone unfamiliar with these issues, there is virtually no explanation as to what's going on. And what's going on is a big deal.

UPDATE: BNA reports ($) that "In the first court challenge to a series of recent dismissals of campaign finance enforcement cases, the liberal watchdog group Public Citizen has decided to file a lawsuit seeking to overturn the Federal Election Commission's dismissal of a matter involving the pro-business group Americans for Job Security, Public Citizen staffer Craig Holman told BNA April 23."

Briefing Schedule Set in Coleman-Franken Case

See here. Opening brief April 30. Franken's respondent's brief May 11. Coleman's reply brief May 15. Oral argument June 1. This followed Coleman's requested schedule. I expected the court to somewhat split the difference, but as I've noted the difference between the parties was less than two weeks, and at this point there is not much difference between a May 15 and June 1 hearing.

No "Day of Reckoning" for ALP, the Pro-Clinton 527

Following up on this post, via Politico comes news that the FEC split 3-2 along party lines in deciding not to pursue a complaint against ALP. (Commissioner Weintraub, who used to work for Perkins Coie, recused herself, as she did in the Lantern Project case discussed earlier today, which also featured an attorney from Perkins Coie.) Bob and I debated the merits of his complaint against ALP during the primary season.

"House leaders give ground on Florida election law overhaul"

The Florida legislature gives in.

"Cheh to Seek Court Order in Elections Probe"

The Washington Post offers this report.

"Partisan shift reshapes face of election administration in Tennessee"

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

Looks Like There Will Be Two Justices Recused from the Minnesota Supreme Court in Coleman-Franken

See this first order of the Supreme Court in the Coleman-Franken case. (Follow all filings at this link.)

A Huge Development in FEC 527 Enforcement?

The FEC, without a press release, recently posted this letter (see also here) in regards to a complaint filed by Democracy 21 and the Campaign Legal Center against the Lantern Project (MUR 5854). The Lantern Project ran ads that were critical of Rick Santorum, then running for U.S. Senate reelection, but that did not contain express advocacy. For example, one ad said: "From privatizing Social Security to cutting student loans for the middle class, when Rick Santorum has to choose between siding with George Bush or middle class Pennsylvanians, Santorum supports Bush. What is he thinking?" The group's mission statement said its purpose was to "shine the light on Rick Santorum's extreme positions, failed policies and hypocritical statements -- and let the facts speak for themselves."

Though the FEC agrees the ads are critical of Santorum, and arguably at least one of them attacked his character or fitness for office, they did not constitute an expenditure because they neither contain express advocacy nor do they meet a WRTL-type test for the functional equivalent of express advocacy. [UPDATE: The vote on this matter was 4-1, with Walther dissenting, and Weintraub recused.]

If this is going to be the standard for what 527s can do in the next election without running into the danger of being classified as a political committee, I expect the next few elections will see a great growth in this activity. I think this ruling will take a lot of fear away from potential 527 donors in the next election.

Interestingly, Perkins Coie represented the Lantern Project, but Bob Bauer (of the firm) during the 2008 campaign was critical of a pro-Clinton 527 during the 2008 primary season relying on a similar interpretation of FEC activity. (If this last sentence doesn't prompt Bob to come back to blogging I'll be disappointed.) Bob's view that there would be a "day of reckoning" for givers to pro-Clinton 527s does not seem likely at this point.

One would think a ruling as significant as this would have merited a press release from the FEC. Thanks to a careful reader of the FEC website for passing this along.

"Better Parties, Better Government: A Realistic Program for Campaign Finance Reform"

Peter Wallison and Joel Gora have written this new book (forthcoming, AEI Press).

"Coleman asks state Supreme Court to take it slow"

The Star-Tribune offers this report.

"NY Sets Its Sights on EDR"

Demos reports.

"Money in Politics 2009: New Horizons for Reform

The Brennan Center will host this event in Washington on May 8. Here is the schedule:

Breakfast and registration: 8:15 - 8:45 a.m.

I. Welcome: Michael Waldman (Brennan Center for Justice) and Robert Kaiser (Washington Post)

II. Panel One: Is the Small Donor Revolution Hype or Reality? Campaign Finance and Political Engagement

Focusing on data from 2008 election cycle, implications for reforms on contribution limits from new research by Professor Stratmann, and public engagement as part of the goals and practice of both campaign finance and governance.

* Laura MacCleery (Brennan Center for Justice) (moderator)
* Michael Malbin, Data on Small Donors (Campaign Finance Institute, University at Albany SUNY)
* Dr. Thomas Stratmann (George Mason University)
* Rev. Lennox Yearwood (Hip Hop Caucus)
* Andrew Hoppin (Chief Information Officer, New York State Senate)


III. Pre-Luncheon Keynote Presentation: Lawrence Lessig (Change Congress)

IV. Lunch

V. A conversation on the Internet and Campaign Finance

Moderator Micah Sifry (Personal Democracy Forum), Lawrence Lessig (Change Congress), and Adam Bonin (Netroots Nation): A legal framework premised on distinctions between print and broadcast media has struggled to keep up with advances in new media. How can we re-imagine the applicability of campaign finance principles in the age of Internet fundraising, social networking, and digital dissemination of information? Does the Internet provide more opportunities for circumvention, or new tools to expose and combat corruption? How can and should we regulate new media forms in light of the impact of money in politics?

VI. Panel Two: Reconfiguring Reform: Innovations in Campaign Finance Reform

Focusing on implications of small donors for changes in the structure of public financing systems and the questions that are raised.

* Michael Waldman (Brennan Center for Justice) (moderator)
* Fred Wertheimer (Democracy 21)
* Nick Nyhart (Public Campaign)
* Beth Rotman (Director, Connecticut' Citizens Election Program)
* Richard Briffault (Columbia Law School)
* Bob Bauer (Perkins Coie LLP)


VII. Panel Three: Money, Politics, and the Constitution: Is campaign finance reform on a collision course with the Supreme Court?

Focusing on the explosion of constitutional challenges to campaign finance reform in federal and state courts. Is there tension between the Constitution and the aims and methods of reform?

* Monica Youn (Brennan Center for Justice) (moderator)
* Trevor Potter (Campaign Legal Center, Caplin & Drysdale)
* Allison Hayward (George Mason University School of Law)
* Don Simon (Sonosky, Chambers, Sachse, Endreson & Perry LLP)
* Rick Hasen (Loyola Law School)


VIII. Closing Remarks and Send-Off: Bruce Ackerman (Yale Law School) and actor Sam Waterston

IX. Wine Reception
Crowell & Moring, 1001 Pennsylvania Avenue, NW (around the corner from the National Press Club).

"Secretary Brunner Makes Elections Recommendations in New Report"

See this press release.

Coleman Requests Longer Briefing Schedule

Under this plan, the final brief would be due May 15 rather than May 4. I expect something between the two proposals to issue from the court shortly.

"Latest in the 20th: Murphy up by 273; court wrangling but end may be near"

The Times-Union reports.

"Dems Hedge on Franken Seating"

Politico offers this report.

Yet Another Partisan 3-3 Split at the FEC

BNA reports ($).

"Voting Rights and the Beneficiaries of Selma"

Edward Blum has written this article about NAMUDNO for The American.

"Small Donors, Large Donors and the Internet: The Case for Public Financing After Obama" [Corrected title]

Michael Malbin has written this paper and posted it at the Campaign Finance Institute website.

This goes to the top of my reading list. I always learn from Michael's work.

Ned Foley's Tour de Force on the Equal Protection Issues in Coleman-Franken

The lawyers for both sides would be crazy not to meticulously study this blog post/law review article in disguise by Ned. I don't agree with his bottom line (on unanimity being the most important value here) and I don't agree with all aspects of the analysis, but this is a very clarifying essay.

Let me introduce one issue on the "local policy" point that Ned raises, and it is an issue I've raised many times before regarding post-election challenges: the question of laches. To the extent that different boards have different policies and standards for deciding which ballots are entitled to be counted under the state absentee ballot statutes, that's an issue that could (and in my view, usually must) be dealt with before an election (or before absentee ballots are considered for counting) rather than after. To allow the claim after gives an election contestant an impermissible option: if the count favors me, don't raise the potential problem. If it works against me, raise it later. To avoid post-election litigation, I've suggested courts should be open to challenge these problems pre-election, and bar such claims after the election as too late (under the doctrine of laches).

If that is right, any deviation in local policies, while potentially an enjoinable equal protection violation before the election under Ned's theory, cannot be the basis for a post-election remedy.

It seems pretty clear, from reading Ned's post and Coleman's second issue on appeal that the real thrust of this appeal will be an argument that---state law or not--the federal equal protection clause requires a NEW ELECTION because the initial counting of ballots was done with impermissible variation across localities. For reasons I've suggested, I think courts are not likely to embrace this reading of Bush v. Gore, even if Ned can make a principled argument in its favor.

If I have time, I'll offer some more thoughts on Ned's post. But read the whole thing.

Op-Ed Versions of Law Review Articles from Leading Law Reviews

That's the idea behind the Legal Workshop magazine. Here is the press release. (I owe them an op-ed version of The Untimely Death of Bush v. Gore, 60 Stan. L. Rev. 1 (2007)). UPDATE: Larry Solum offers some provocative thoughts on this project.

Bauer Giving Up the Daily Blog

Read it and weep.

Bob makes good points, points I have struggled with myself. One difference is that Bob has blogged a few significant paragraphs of substance every day. I, on the other hand, see about 80% of my content as linking (and often briefly commenting) on recent events, with the other 20% being substance/analysis equivalent to what Bob does. So I can put off my substance for a few days when I have other commitments. I've also tried to confine my blogging to a finite period of time in the morning, with only important updates during the day.

Still, sometimes the blog seems like a fourth child of mine, competing for my attention. I certainly can sympathize with Bob's decision, and am happy to hear that the blogopshere's loss will be a gain for scholarly journals and a deeper understanding of election law issues.

"South Carolina GOP Sues to Close Primaries to Dems"

Steve Rankin explains. More from The Greenville News. You can find the complaint here.

"Groups accept Obama rules - for 1 night"

Politico offers this report, which begins: "The two major Democratic congressional fundraising committees agreed to forego lobbyist and political action committee cash at a June fundraiser in order to land President Barack Obama as the keynote speaker."

Franken Wants Expedited Hearing in Coleman Election Contest Appeal

Jay Weiner: "Meanwhile, the Franken side will file a motion Tuesday morning to expedite the process. Franken's side wants the Coleman team to have its brief in by Monday, with Franken's reply by May 2 and Coleman's reply to Franken's side by May 4. Then, a hearing would be set." [UPDATE: You can now read the motion here.]

My guess is that the court will be more generous than that, adding a week more or so for the filing of the initial brief. Given this press for a quick date, however, you can see why I suggested (contrary to others) that it was rational and reasonable for the Coleman lawyers to take a few extra days before filing the notice of appeal in order to work on the brief.

Eric Black has started a series on the equal protection arguments in the case. I've weighed in at Slate, and Ned Foley has a series of posts on the topic.

Did Bad Legal Advice, or Politics, Keep Sen. McCain from Choosing Sen Lieberman as a Running Mate?

As I've noted, Richard Winger debunked the argument of a McCain adviser that West Virginia's "sore loser law" prevented Sen. McCain from running for President with Sen. Lieberman on the ticket.

But was it really bad legal advice that prevented choosing Lieberman? I have my doubts. I know members of the McCain legal team, and they are very, very good. Perhaps they concluded there was a legal risk in choosing Lieberman. More likely to me is the idea that the McCain political team concluded they did not want Lieberman, and that the legal advice angle was a nice, face saving excuse for passing him over for Gov. Palin.

"Nonprofit Groups to Push for Exceptions to Lobby Rule"

The NY Times offers this front-page report.

My Review of Manfredi and Rush

Political Science Quarterly has published my review (no online access yet, but it should be here eventually) of Christopher P. Manfredi and Mark Rush, Judging Democracy (2008), at 124 Political Science Quarterly 213 (2009).

Yasmin Dawood's very good review of the book will be out any day in Volume 8:2 of the Election Law Journal.

Jeffrey Rosen on NAMUDNO

A must-read, provocative column.

Coleman Appeals

Here is the notice of appeal.

Here are the issues Coleman plans to raise on appeal:

I. Whether the trial court erred in excluding evidence regarding (a) the disparate application by election officials of the statutory standard governing absentee ballots and (b) the presence of illegal votes in the certified totals from election night?

II. Whether the trial court violated the constitutional protections of equal protection and due process when it declared that Respondent received the highest number of "legally cast votes" where the record demonstrated that, by the trial court's rulings, the number of "illegally cast" ballots counted on election day and during the recount greatly exceeded the margin between the candidates and it cannot be determined for which candidate those illegal votes were counted?

III. Whether the trial court violated the constitutional protections of equal protection and due process when it imposed a strict compliance standard for the rejected absentee ballots rather than applying a substantial compliance standard to reflect those actually applied by election officials (as well as this Court's longstanding policy favoring enfranchisement)?

IV. Whether the trial court erred in declining to order inspections of precincts in which double-counting was alleged to have occurred?

V. Whether the trial court erred in ruling that missing ballots from Minneapolis Precinct 3-1 were properly included in the tally of legally cast votes?

"Derailing California's Money Train"

Bob Stern and Molly Milligan have written this LA Times oped.

Jacob Weisberg on Why Pres. Obama's Lobbying Rules are a Mistake

Here.

"Election Administration Reform and the New Institutionalism"

I have just posted this draft on SSRN (forthcoming, California Law Review). Here is the abstract:

One of the hallmarks of a mature democracy is professionalized, centralized, and nonpartisan election administration. It is hardly news that the United States does not fit this model, and that since the 2000 election meltdown culminating with the Supreme Court's decision in Bush v. Gore, the country has faced biannual anxiety over whether the next meltdown is imminent. Some observers at first hoped the courts or Congress would spur election administration reform, but that has not happened. Now, some election law scholars have turned to institutional design, considering new institutions or mechanisms, such as amicus courts and electoral advisory commissions, to prod existing institutions into election reform. Heather Gerken's significant new book, The Democracy Index: Why Our Election System is Failing and How To Fix It, represents the most sustained effort in this New Institutionalist vein. It makes the case for the creation of a ranking of states ("the Democracy Index") along a number of election administration criteria, such as how well the system counts votes and how long it takes voters to cast a ballot. Gerken argues that the ranking system will create the right incentives for jurisdictions to move toward professionalized and non-partisan election administration.

Part I of this review sets forth Gerken's proposal for a Democracy Index. Part II situates the book within the New Institutionalist approach to election administration reform. It argues that Gerken's work is significant not only for its specific proposal but also because it advances the New Institutionalism. It catalogs the various ways in which the addition of information may spark both rational and emotional reactions by election administrators, legislators, judges, the public, and political parties.

Part III turns from the theory of causal mechanisms of the New Institutionalism to a look at the available evidence. Based upon what we know, it appears that the Democracy Index could well increase the professionalism of election administration in the United States, and thereby decrease the risk of electoral meltdown. But the Index likely will not be enough to overcome the twin pathologies of partisanship and localism that have thus far blocked comprehensive election administration reform. This Review concludes by noting that Old Institutionalism--hardball politics backed by one party or the use in states of an initiative bypass--rather than the soft politics of the New Institutionalism, may present the best hope to fully revamp our system of election administration.

NAMUDNO Oral Argument Audio To Be Released Right After Argument

Details here.

WWCD?

Perhaps veto the controversial election administration bill working its way through the Florida legislature.

California Supreme Court Decides Important Case Involving Government Support for Ballot Measures

The opinion in Vargas v. City of Salinas is here. It considers the earlier standard set forth in the influential Stanson v. Mott decision. Here is the introduction to the Vargas opinion:

Plaintiffs--proponents and supporters of a local ballot measure that proposed the repeal of a utility users tax imposed by the City of Salinas--filed this lawsuit against the City of Salinas (the City) challenging the validity of a number of actions taken by the City relating to the ballot measure. In Stanson v. Mott (1976) 17 Cal.3d 206 (Stanson), we explained that because of potential constitutional questions that may be presented by a public entity’s expenditure of public funds in connection with a ballot measure that is to be voted upon in an upcoming election, there is a need to distinguish between (1)"campaign" materials and activities that presumptively may not be paid for by public funds, and (2)"informational" material that ordinarily may be financed by public expenditures. We noted in Stanson that although there are some communications or activities that clearly fall within one of these categories or the other, under some circumstances it may be necessary to examine the "style, tenor, and timing" of a communication (id. at p. 222 & fn. 8) in order to determine whether it should be characterized as permissible or impermissible.


In the present case, the Court of Appeal concluded that in light of a statutory provision enacted subsequent to Stanson, supra, 17 Cal.3d 206, a municipality's expenditure of public funds on a communication relating to a ballot measure is permissible whenever the communication does not "expressly advocate" a position with regard to the ballot measure. The appellate court held that so long as a communication avoids this prohibition on "express advocacy"-- a term of art originating in the context of regulations relating to private campaign contributions and expenditures, and referring to a limited and narrowly defined category of statements-- there is no need to consider the communication's "style, tenor, and timing" in determining the validity of the use of public funds on the communication. Because plaintiffs conceded that the materials challenged in the present case did not (within the meaning of the express advocacy standard) expressly advocate a position regarding the ballot measure, the Court of Appeal on that basis alone concluded that plaintiffs' legal challenge lacked merit and consequently upheld the trial court's order striking plaintiffs' action under Code of Civil Procedure section 425.16, California's anti-SLAPP statute.


We granted review primarily to consider whether the Court of Appeal correctly identified the legal standard applicable to publicly funded, election-related communications made by a municipality, and further to determine whether, under the appropriate standard, plaintiffs' legal challenge to the City's expenditure of public funds in this case should have been permitted to go forward.


For the reasons discussed below, we conclude that the statute relied upon by the Court of Appeal was not intended, and should not be interpreted, to displace the analysis and standard set forth in our decision in Stanson, supra, 17 Cal.3d 206. We further conclude that a municipality's expenditure of public funds for materials or activities that reasonably are characterized as campaign materials or activities-- including, for example, bumper stickers, mass media advertisement spots, billboards, door-to-door canvassing, or the like-- is not authorized by the statute in question, even when the message delivered through such means does not meet the express-advocacy standard. At the same time, we also conclude that the challenged actions of the City, here at issue, as a matter of law do not constitute improper campaign materials or activities under the standard set forth in Stanson. Accordingly, although we disagree with the legal standard applied by the Court of Appeal, we conclude that it correctly upheld the trial court's ruling in favor of defendants and thus that the judgment of the Court of Appeal should be affirmed.

"Minnesota Expenses Pile Up -- But Who's Counting?"

Eliza is.

"Norton Calls for Action on D.C. Vote"

Roll Call offers this report ($).

"It's Only a Flesh Wound"

Norm Coleman Meets Monty Python at Roll Call.

"Minnesota Case Tests Court that Shuns Politics"

AP offers this report.

"Making the District More of a Democracy"

Adam Fogel has written this WaPo oped.

What Hertzberg Said...

This seems right on Coleman-Franken.

"The Influence of Retention Politics on Judges' Voting"

Joanna Shepherd has published this article in the Journal of Legal Studies. Here is the abstract:

This study shows that the political preferences of those responsible for retaining judges are strongly associated with judicial voting. The evidence supports the widespread belief that judges respond to political pressure in an effort to be reelected or reappointed. Using a data set of decisions in state supreme courts from 1995-98, I find that state supreme court judges who face retention decisions by Republicans tend to decide cases in accord with standard Republican policy. Judicial behavior is correspondingly liberal for judges facing retention decisions by Democrats. The results are strongest for judges facing partisan reelections. Among judges with conservative fundamental ideologies, those facing Democratic retention agents vote more liberally than those facing Republican retention agents. Similarly, judges’ voting changes when the political preferences of the retention agents change. Judges with permanent tenure and judges in their last term do not respond to the same forms of political pressure.

"No Country for Close Calls"

Nate Silver and Andrew Gelman have written this interesting NYT oped.

"Suppressing the Vote in Florida"

The NY Times offers this editorial. I am left asking the question: "What Would Crist Do if this thing passes the state legislature?

"Voting Rights Act has passionate, strong advocate in Sensenbrenner"

The Milwaukee Journal-Sentinel offers this report.

"Time Nears for Pawlenty to Cast His Vote"

More talk from the Minnesota governor that he might wait for a follow-on federal lawsuit before issuing an election certificate. I've expressed my skepticism of the federal lawsuit already, but if Coleman is going to file one, why not file it right now? After all, in Roe v. Alabama (described in detail in the last section of this paper), the Republican opposed to the state court proceedings filed it while those proceedings were ongoing. I haven't heard any journalist ask that question of the Coleman camp yet. The fact that they are waiting suggests the federal suit could be simply a reason for further delay, and not a serious suit.

"GOP power grab is an affront to voters"

The St. Petersburg Times offers this editorial, which begins: "Republican legislative leaders have lost all sense of shame with their 11th-hour bill to roll back voting rights in Florida. The legislation is so disgraceful it is no wonder a Republican-led House committee debated the bill for all of 6 minutes Friday before silencing public comment and approving the bill along party lines. This fast-moving train needs to be stopped cold."

Did West Virginia's Sore Loser Law Prevent Sen. McCain from Choosing Sen. Lieberman as a Running Mate?

A.B. Culvahouse says yes. Richard Winger says no.

Scott Johnson of Powerline More Skeptical than WSJ of Coleman Equal Protection Argument

Johnson: "I am sorry to say that reading the decision persuades me that the Journal's encouragement of Senator Coleman's pursuit of an appeal is misguided because he has no chance of winning such an appeal."

Tony Mauro on NAMUDNO, Etc.

See this Legal Times report.

Is Norm Coleman Delaying By Not Filing His Notice of Appeal Early?

That's the suggestion of Eric Black. I don't buy it. Though it is true that there's nothing to study in order to fill out a form for the notice of appeal, Eric is missing the bigger picture: waiting until the 10th day to file the notice of appeal means that the Coleman team has nine more days to work on their substantive brief to come later (see here, noting that 15 days to file record begins running at the time of filing of notice of appeal). The time to file that brief won't start ticking until the notice of appeal is filed. So this is just smart appellate strategy (something I still remember a bit about).

And here's a Wall Street Journal editorial supporting Coleman's equal protection argument.

Interesting Case Involving Party Loyalty Oath and Section 5 Preclearance in Mississippi

A federal district court has issued this judgment and this opinion in Lowe v. Democratic Municipal Executive Committee of the City of Leland, Mississippi. The Democrats are expected to appeal to the 5th Circuit.

"Mr. Obama's Chance to Fix the F.E.C."

The NY Times offers this editorial.

Norm Coleman in His Own Words on the Appeal to the State Supreme Court

See here.

In the Election Law Mailbag

Stephen K. Medvic, Campaigns and Elections: Players and Processes (2010)

Robert B. Thompson & Paul H. Edelman, Corporate Voting, 62 Vand. L. Rev. 129 (2009)

Ellen Katz's NAMUDNO Preview for the ABA

Read it here.

Coleman Doesn't Rule Out Cert. Petition if He Loses in State Supreme Court

See here. The article does not mention the potential for a follow-on federal lawsuit.

"Wash. Legislature OKs popular vote bill"

For those counting, it looks like we are now at 61 votes out of 270 needed for NPV to kick in, with the inevitable legal challenge to follow.

"Murphy gains as judge narrows challenges"

The latest from NY-20.

"Coleman Is the Real Comic in Contest With Franken: Ann Woolner"

See this Bloomberg News commentary.

"Texas Voting Rights Act Case Will Be Felt In Some California Counties"

The Daily Journal offers this report (thanks to Howard for posting it).

"Overhaul of Florida Voting Rules is Proposed"

The NY Times offers this report.

Controversy Over OMB Stimulus Lobbying Guidance

The OMB guidance is here. Via Political Activity Law comes a link to this report in The Hill arguing that the guidelines are unconstitutional. William Luneberg, however, defends the law against constitutional challenge.

Cornell LII Preview of NAMUDNO Oral Argument

See here.

NAMUDNO Reply Brief Now Filed

You can read it here. Briefing is now complete. Oral argument is April 29. My Slate piece on the case will appear before the argument.

"Coleman-Franken: new Bush v. Gore?"

Politico offers this report.

More Governor Pawlenty on a Federal Lawsuit and a Delay in Senate Election Certification

NY Times:

Still, Mr. Pawlenty said he thought it could take two months for the Minnesota Supreme Court to hand down a decision. Senator John Cornyn of Texas, the head of the Republican Senate Campaign Committee, said Tuesday that Republicans were also prepared to take the battle into federal court if Mr. Coleman loses yet again. Such a step could put Mr. Pawlenty in a particularly tough spot, though he made clear in the interview that he would not necessarily delay certification if Republicans go to federal court.

Howard rounds up the latest coverage of the Coleman-Franken dispute.

"Voting Rights Act s 5: Leave It Up to Congress"

Ellen Katz has written this commentary for the National Law Journal.

Jessica Leval on the Democracy Index

See here.

D.C. Circuit Finds Absolute Immunity for Rep. Murtha's Statement about Haditha Incident

You can find the opinion here (via How Appealing.).

"As Coleman's hope dims, pursuit of seat questioned"

The Hill offers this report, which begins: "Even Republican strategists are beginning to admit that former Sen. Norm Coleman’s (R-Minn.) options to regain his seat are looking limited following his latest legal defeat." See also this report in USA Today and this NY Times report.
Meanwhile Roll Call reports that "National Republican Senatorial Committee Chairman John Cornyn (Texas) reaffirmed the GOP Conference’' commitment to filibustering any Democratic attempt to seat Franken."

More Minnesota

Governor Pawlenty is still claiming (contrary to the state Supreme Court's earlier opinion) that a federal lawsuit could delay the issuance of the election certificate for Franken.

Meanwhile, Guy Charles says that "It's Kumbayah time" for Coleman.

More on EAC Employee Dissatisfaction

Following up on this post, Paul Gronke compared the satisfaction numbers with employee satisfaction at the FEC and the SEC and came up with these numbers:

Trust and confidence in supervisor, strongly disagree:
7.5% (FEC), 8.7% (SEC), 31.8% (EAC)

High level of respect, strongly disagree
13.3% (FEC), 9.6% (SEC), 34.8% (EAC)

Policies and practices of senior leaders, percent very dissatisfied
11.1% (FEC), 10.0% (SEC), 39.1% (EAC)

The Coleman Opinion and the Precedential Value of Bush v. Gore

Back in 2001, I discussed in a law review article the possibility that Bush v. Gore would in fact have no precedential value. That discussion formed the basis for a very heated debate on the Sixth Circuit in a case involving a challenge to Ohio's use of punch card voting machines in only some Ohio jurisdictions. The question of Bush v. Gore's precedential value continues to be debated; see for example, this excellent piece by Chad Flanders.

So it is notable that the Coleman-Franken opinion flirts with the idea that Bush v. Gore has no precedential value at all:

Contestants allege the adoption of different procedures by local election officials violates the Equal Protection Clauses of the United States and Minnesota Constitutions. Contestants rely exclusively on Bush v. Gore in support of their equal protection argument.

The United States Supreme Court expressly limited the potential precedential reach of its opinion in Bush. See Bush ("Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.") See also Austin v. Wilkinson, 502 F.Supp.2d 660, 671 n.6 (N.D. Ohio 2006) (characterizing Bush as a "notable execption" to the general rule that "when the Supreme Court rules, it intends that its words will guide the future actions of those before and not before the court. That is, it will create precedent[.]."); Spears v. Stewart, 283 F.3d 992, 997 (9th Cir. 2002) (comparing majority opinion to the Bush decision thusly: "good for this case and this case only[.]").

More News and Commentary on the Coleman-Franken Decision

Ned Foley (a must-read)

Star-Tribune

AP

Minnesota Public Radio

Pioneer Press

MinnPost (on Pawlenty)

Bloomberg

Minnesota Independent

Politico

Nate Silver (on attorneys' fees)

MSNBC (on the GOP's silence, suggesting to me a potential throwing in of the towel)

I posted my initial thoughts on the three-judge opinion here. The one part I remain uncertain about is the extent to which the court decided the equal protection claim on the merits. I'm still not sure what the difference is between not looking at the equal protection issue for purposes of finding "deliberate, serious and material" violations of Minnesota law, and looking at the equal protection issue "[t]o the extent Contestants' equal protection argument raises the issue of whether a vote has been 'legally cast.'" (P. 38 of opinion.) Surely Coleman's lawyers will argue, if they file a federal suit, that the state court did not adjudicate (or did not fully adjudicate) the equal protection argument, and that's the only point I was making in regards to a potential follow on federal lawsuit.

Brad Smith and Bob Bauer on FEC Deadlocks

Here and here.

Katyal, Not Kagan, Will Argue NAMUDNO

See here.

Initial Thoughts on the Decision in the Coleman-Franken Dispute: Coleman's Chances on Appeal Appear Quite Small

I have taken a very quick look at the opinion of the three judge court in the Coleman election contest. Here are some initial thoughts.

1. A reasonable tone and tenor. This is a careful, unanimous opinion the a "tripartisan" 3-judge court. It makes findings of fact and conclusions of law that on first read appear reasonable and conservative. The opinion considers the major arguments made by Coleman and rejects them in a detailed and measured way. It is the kind of opinion that is unlikely to be disturbed on appeal by either the Minnesota Supreme Court or the United States Supreme Court.

2. The Equal Protection analysis. The court has it both ways in this opinion. On the one hand, it states that it is without jurisdiction to rule on the equal protection argument of Coleman (more o the equal protection that argument in this Slate piece). It is limited under the state contest laws in simply deciding who had more legal votes. But despite that point, the court made findings that the election was conducted under uniform standards, and that the treatment of absentee ballots did not differ all that much from county to county. The court then included a detailed and careful memorandum exploring the various equal protection issues, especially the Bush v. Gore issues. The court distinguished Bush v. Gore in some reasonable ways. As I predicted, they rejected a reading of the case that would require the counting of further illegal votes to deal with any illegal votes that had already been cast, and they rejected an argument that any lack of perfection in the casting and counting of votes constitutes a violation of equal protection. It is an impressive and sensitive handling of the equal protection issue, one I hope to study in much greater detail later. (There's also some fascinating discussion of the democracy canon, and its application to election laws generally and to absentee ballot laws that merits further study).

3. State law claims. I have not followed these claims nearly as closely. But apparently the court found that Coleman waived some of his arguments by agreeing to some procedures earlier on in the process.

4. What's next?. Coleman has promised an appeal to the state Supreme Court, but I would not count on it. He might decide that his political future in Minnesota requires him to bow out gracefully at this point. The countervailing factor is the national interests of the Republican party, which want to keep a 59th Democrat out of the Senate for as long as possible. If Coleman appeals, it is possible that the Minnesota Supreme Court would reach the equal protection issues more directly, but even if it did, I'd be surprised to see a different result.

As for federal court, I've already examined the possibility of a second federal suit. What changes now is the greater likelihood that a federal court would be willing to adjudicate an equal protection claim, because the state court formally did not do so. (However, the state court said that the U.S. Senate has sole jurisdiction to consider such issues, and the first hurdle for Coleman in a federal court case would be to convince the federal court that it has jurisdiction over this issue, rather than leaving it to the Senate.) But even if the federal court reached the issue, for reasons I've already stated, it is likely to agree with the state court on the merits that Coleman cannot successfully make an equal protection argument. (I also believe, as I stated in my earlier post, that the filing of a federal suit would not delay the issuance of an election certificate to Franken.)

The Three-judge court opinion ends by extolling the virtues of the Minnesota electoral system. I think some praise needs to be heaped on the three judge court as well, for doing a fair job and rising above the partisan politics that has infected too many election law cases in recent years.

Breaking News: Franken Wins 3-0 Before 3 Judge Court

The opinion is here. More to come.

"Voting Reform Gets New Life"

Eliza's latest.

"Conflict at the FEC"

Bauer's latest.

Some Dissatisfaction within the EAC

It is a small-n survey of EAC employees, but here are some disturbing results:

31.8% of respondents "strongly disagree" with the statement "I have trust and confidence in my supervisor."

34.8% of respondents "strongly disagree" with the statement "I have a high level of respect for my organization's senior leaders."

39.1% of respondents are "very dissatisfied" with "the policies and practices" of "senior leaders."

"The Battle Over Absentee Ballots"

The latest on the NY-20.

After 3-3 Split, a 4-2 Split at FEC and Separate Statement of Reasons from Commissioners Bauerly and Weintraub

See here.

Bauer and Ginsberg on Election Litigation

Via email comes the following announcement:

NOW AVAILABLE AT THE WILLIAM & MARY LAW ELECTION LAW PROGRAM WEBSITE

The National Center for State Courts and the William & Mary Law School's Election Law Program is pleased to present a new web lecture, A View from the Trenches: Advice for Judges Handling Election Related Lawsuits from Experts Bob Bauer and Ben Ginsberg, moderated by Davison Douglas, Founding Director, Election Law Program and Arthur P. Hansen Professor of Law at William & Mary.

You can find earlier videos in the series, from Dave Douglas, me, Ned Foley, and Avi Rubin at this link.

Edward Blum Response to Ellen Katz on Obama's Election and the Constitutionality of Section 5

On March 26, I featured this guest post from Ellen Katz. Edward Blum sends along this response:

Ellen Katz's post to this blog last week, "The Misguided Effort to Explain Obama to the Court--or--Why Obama Really Matters and What the Court Should do About It" asserts that "John Kerry did significantly better among white voters in covered states in 2004 than did Obama last year." This is not fully accurate.

First, Prof. Katz asserts that no state wholly covered by the VRA voted for Obama; this is incorrect. Virginia supported Obama making him the first Democratic presidential nominee to carry the state since 1964. Virginia is usually identified as a state wholly covered by Section 5 even though several Virginia counties and independent cities have bailed out from under Section 5. The value of Katz's observation is further undermined by Obama's victory in North Carolina. More importantly, as to whether Obama received less of the white vote than did John Kerry in states subject to Section 5, here are the results:

Three states (Alabama, Louisiana and Mississippi) saw the share of the white vote going to the Democratic presidential candidate decline from 2004 to 2008. In Florida and Georgia, Barack Obama and John Kerry received the same shares of the white vote. In North Carolina, South Carolina, Texas and Virginia, Obama's share of the white vote exceeded that received by Kerry.

The declines were 3 percentage points (Mississippi), 7 points (Alabama) and 10 points (Louisiana). In terms of absolute numbers, these declines are more than offset by the gains of 8 percentage points in North Carolina, 7 in Virginia, 4 in South Carolina and 1 in Texas. South Carolina has a larger white electorate than Mississippi, Virginia has a larger white electorate than Alabama, and North Carolina's white electorate is several times larger than that of Mississippi. See this chart.

"MN-Sen: State Supreme Court Justice is a Norm Coleman Donor and Should Recuse Himself"

MyDD offers this report.

Coleman v. Franken

USA Today offers this editorial.

"Minnesota's High Court May Not Be the Last Word"

The Star Tribune offers this extensive report.

The report quotes from this post of mine at the ACS blog.

"FEC Split Over Its Openness"

Roll Call offers this fascinating report ($).

A Deluge of (Genuine) Issue Ads

See here.

"Differing Views in GOP on Voting Rights Case"

AP offers this report on NAMUDNO.

"An Apology For Saying Asians Should Adopt Easier Names"

See here.

"Brunner wants local board to decide Husted residency"

The Dayton Daily News offers this interesting report. See also here and here.

"From Here to Theory in Election Law"

Michael Kang has written this book review for the Texas Law Review of Heather Gerken's new book, "The Democracy Index."

I'll be posting my draft review of the book soon, hopefully this week.

"Lawmaker defends comment on Asians"

The Houston Chronicle offers this report, which begins: "A North Texas legislator during House testimony on voter identification legislation said Asian-descent voters should adopt names that are 'easier for Americans to deal with.'"

"A Dot-Pol of Their Own"

Matthew Sanderson has written this Washington Post oped, based on his recent article (temporary free access) in the Election Law Journal.

"Reviving the Motor Voter Law"

The NY Times offers this editorial. It cites these studies from Project Vote and Demos.

"Deadlock: Rise of the Endless Election"

Politico offers this interesting report.

2008 Supplement to ABA "America Votes!" Book Now Available

You can order it here. Here is the Table of Contents:

C H A P T E R ONE

Voting Rights Enforcement in the 2008 Elections

and the Role of the Campaign Legal Center 1

J. GERALD HEBERT

I. The Post-Bush v. Gore Era 1

II. Anticipation of Widespread Election Litigation in 2008 2

III. The Campaign Legal Center's Voting Enforcement Project 4

A. The Drafting of Legal Templates 4

B. The Campaign Legal Center's Participation in 2008 Election Litigation 6

1. Willie Ray v. Texas 6

2. United States v. Waller County 7

3. Van Hollen v. Government Accountability Board

(the Wisconsin Suit) 8

IV. Election Litigation during the 2008 General Election Season 9

A. Colorado 9

1. Common Cause v. Coffman 9

B. Florida 9

1. Florida State Conference of the NAACP v. Browning 9

C. Georgia 9

1. ACORN v. Cox 9

2. Morales v. Handel 9

D. Indiana 10

1. Brown v. Rokita 10

2. Curley v. Lake County Board of Elections 10

3. Schoettle v. Marion County Board of Elections 10

E. Michigan 10

1. United States Student Association Foundation v. Land 10

2. Maletski v. Macomb County Republican Party 10

3. Carabelli v. Center for Independent Media 11

F. Missouri 11

1. ACORN v. Scott 11

G. New Mexico 11

1. AAPD v. Herrara 11

2. Garcia v. Fox-Young 11

H. Ohio 12

1. Ohio Republican Party v. Brunner 12

2. Project Vote v. Madison County Board of Elections 12

I. Pennsylvania 12

1. Moyer v. Cortes 12

2. NAACP-SCP v. Cortes 12

J. Virginia 12

1. McCain-Palin 2008 v. Cunningham 12

2. Virginia NAACP v. Kaine 13

K. Wisconsin 13

1. Van Hollen v. Government Accountability Board 13

V. Post–Election Day Litigation in 2008 13

A. Alabama 13

1. United States v. Alabama 13

B. Ohio 14

1. Skaggs v. Brunner 14

2. Ray v. Franklin County Board of Elections 14

C. Texas 14

1. Texas Democratic Party v. Bettencourt 14

D. Virginia 14

VI. Observations about Litigation (or Its Absence) and

the 2008 Election Cycle 15

Notes 16

C H A P T E R TWO

Florida Election Procedural and Legal Changes

from 2000 to 2008: A Primer 19

KENNETH A. TINKLER

I. Legislative and Technological Election Changes after 2000 19

A. Florida Election Reform Act of 2001 19

B. Post-2001 Procedural and Technological Changes 20

C. The Help America Vote Act of 2002 and Its Impact on Florida 22

D. Post-2006 Technology Changes 22

II. Voting Process Changes through 2008 23

A. The Rise of Early Voting 23

B. Provisional Ballots and Voter Challenges 25

C. Voter Rights and Responsibilities 26

D. Recounts, Then and Now 27

III. Florida's Voter Identification Laws 27

A. Voter Identification Requirements 27

B. No Match, No Vote 28

IV. The Increased Role of Political Parties in Florida Elections 29

A. Voter Protection 29

V. The Future 29

A. What Did and Did Not Work in 2008 29

B. Future Legislation 30

Notes 31

C H A P T E R T H R E E

Voting and Registration Technology Issues:

Lessons from 2008 37

CANDICE HOKE AND DAVID JEFFERSON

I. The 2008 Performance Record of Digital Voting Systems 39

A. The Scientific Assessments of Voting Systems 39

B. The Voting Systems' 2008 Performance Record 41

II. The Voting Technology Regulatory Regimes: Pre-HAVA and HAVA 43

A. Pre-HAVA 44

B. HAVA's Authority for Federal Voting System Standards and Testing 45

III. The 2008 Record of Statewide Voter-Registration Databases 49

IV. Conclusion 54

Notes 55

C H A P T E R F O U R

Electoral Access, Political Participation,

and Voter Protection in the 2008 Election 65

JAMES THOMAS TUCKER

I. Postmortem on the 2008 Presidential Election 65

A. Waiting Lines and Other Election Day Problems 66

B. The Positive Impact of Early Voting 68

C. Registration and Voting Fraud 69

D. Student Voters Told to Rock the Vote Somewhere Else 70

E. Lose Your Home, Lose Your Vote 72

II. Efforts to Suppress Voter Participation or Mislead Voters 73

A. Threats, Intimidation, and Harassment 74

B. Deceptive Practices 77

C. Robocalls 80

III. The Future of Vote Dilution Claims 83

Notes 86

C H A P T E R F I V E

Which Branch Decides How Much Discrimination

Is Tolerable? The Voting Rights Act's Preclearance Provision

Heads Back to the Supreme Court in Northwest Austin

Municipal Utility District Number One v. Holder 97

DEBO P. ADEGBILE

I. The Constitutional and Symbolic Significance of

the Reconstruction Amendments 98

II. What Is Section 5 and Why Is It the Focus of Constitutional Attention? 99

III. The MUD's Attack of Section 5 101

IV. The Three-Judge Court Rejects the MUD's Attacks on

the Preclearance Provision and Examines the Congressional Record 102

V. The MUD Case on Appeal 104

VI. Conclusion 106

Notes 107

"Runner files new initiative for stricter voting rules"

Voter id in CA? See here.

"Issa Asks Holder for D.C. Voting Rights Documents"

Roll Call offers this report ($).

"Democrat in N.Y.-20 ups lead to 46 votes"

The latest from The Hill.

"GOP, DFL add dueling websites to the recount rhetoric"

The latest from Minnesota.

Electionline Voter ID Roundup

Here.

Someone Should Tell Gov. Pawlenty...

that federal equal protection issues can be raised in state court and I expect will be raised in state court.

So the governor either misunderstands the nature of a potential follow-on federal lawsuit or he's obfuscating.

"REPORT: Conservative media consistently scapegoat undocumented immigrants, ACORN"

Media Matters for America has issued this report.

Quote of the Day

"This is not Minnesota."

---Jerry Goldfeder, commenting on the NY-20 race.

Brennan Center Issues Final Report on 2008 Ohio Election and Avenues for Reform

The report and related information is here. See also this report in the Columbus Dispatch.

"'Express Advocacy' Before the IRS"

See here.

"Proposed change to constitution would create early voting period, require photo ID"

The latest from Missouri.

"Franken No Joke as Coleman Needs Improbable Court Decision"

Bloomberg on Coleman v. Franken v. Bush v. Gore.

"Schumer Urges DOJ: Sue States that Flout Voter Registration Law"

Sen. Schumer has issued this press release. See also this release from Demos.

"FEC Deadlocks on the Rise"

Roll Call offered this report on Monday ($). See also this BNA report ($).

"Franken Exends Lead over Coleman"

The latest from Minnesota.

Watch the Akhil Amar Lecture on Bush v. Gore

Here, on the Florida Law Review's website.

Now the Absentee Ballot Counting Begins in the NY-20

See here.

Eliza on NAMUDNO

See here.

Michael McDonald on the CPS and Latest Voter Turnout Figures

See here.

"Group Challenges IRS's Use of Political Activities Test to Intrude on Charities' First Amendment Rights"

TaxProf has the details.

"Senate recount down to 387 ballots - and almost certain appeal"

The Star-Tribune offers this report. A snippet: "In an interview with MSNBC on Monday, Pawlenty told a reporter that 'you shouldn't assume that Norm Coleman is going to lose the appeal. He has legitimate issues raised." Pawlenty speculated that an appeal could take 'a month or two to decide.' Even then, he said, 'the federal process is available.'" I am skeptical that a federal suit would delay the issuing of the election certificate, and skeptical that there are any viable federal issues in this case. More at NPR.

"Inventing the Right to Vote in Crawford v. Marion County Election Board"

Thomas Basile has written this case note for the Harvard Journal on Law and Public Policy.

"Canonizing the Civil Rights Revolution: The People and the Poll Tax"

Bruce Ackerman and Jennifer Nou have written this article for the Northwestern University Law Review.

Like a Candle in the Wind...

...the complaint against Elton John and Hillary Clinton has been dismissed by the FEC. A foreign national's donation of volunteer services (in this case, the concert) does not run afoul of federal campaign finance laws.

And on that note, next week is Loyola's spring break. I plan to blog, but perhaps not as regularly as I usually do.

Another Voter ID Hearing in Texas

See here.

"Can the Democracy Index cause election reform?"

See here.

"Special 'Rerun' Alaska Senate Election Appears Highly Unlikely"

FOXNews offers this report.

Who Will Be Ohio's Next Secretary of State?

AP explores.

Divided Argument Granted in NAMUDNO

See here. A busy April for the SG.

"If Norm Coleman Makes a Federal Case of It, What Will Happen?"

I have written this post for the ACS Blog. It begins: "Following an order issued earlier in the week by the three-judge court hearing the election contest in the Coleman-Franken dispute, most observers believe that Norm Coleman will lose his election contest before that court. Coleman has already promised an appeal to the Minnesota Supreme Court. If he loses there, it may be off to the United States Supreme Court and then possibly even to federal district court in a new lawsuit. In this post, I explore what is likely to happen in the federal courts if Coleman continues to litigate the outcome of the Minnesota U.S. Senate race beyond the state Supreme Court."

The last part of the post talks about the limited circumstances in which a federal court interferes with a state court election contest on grounds that the state court's change in the rules constitutes a due process violation. The leading case here is the Eleventh Circuit's Roe v. Alabama case. That case, and the issues surrounding it, are fascinating, and I explore them in much greater detail in Part IV of The Democracy Canon.

More Vik Amar on the Constitutionality of the ELECT Act for Senate Vacancies

Vik sends along these follow up answers sent to the Senate Judiciary Committee on the constitutionality of the ELECT Act regarding Senate vacancies.

Andrew Gelman on Gerken's "Democracy Index"

Andrew Gelman offers these thoughts.

I too have thought about the role of voter fraud in Heather's index. I've written a book review, currently out to law reviews, which I hope to post on SSRN soon.

"D.C. Vote Memo Called Informal"

The Washington Post has this follow-up story today.

No Oversized Reply Brief to Be Allowed in NAMUDNO

See the last two docket entries.

"Is Obama's Lobbying Rule Legal?"

National Journal offers this report ($).

"Expert on 'Sampling' Tapped to Lead Census"

The Wall Street Journal offers this report, which begins: "President Barack Obama Thursday nominated Robert Groves, a sociology professor at the University of Michigan, to be the next director of the Census Bureau, a choice that riled some Republican lawmakers."

"Fair Elections Now Act"

The Center for Competitive Politics links to the House and Senate versions of the bill. I hope to have a chance to look at this more closely soon. One provision of the House bill, section 523(a), caught my eye: "The Commission shall pay to each participating candidate an amount equal to 400 per cent of the amount of qualified small dollar contributions received by the candidate from individuals who are residents of the State in which such participating candidate is seeking election." I think an interesting constitutional debate can be had about this match for residents only.

UPDATE: More views from Bauer and von Spakovksy.

"The Shameful Disenfranchisement of the Military in New York's Congressional Race"

Hans von Spakovsky has this post on the NY-20 race.

"D.C. Vote Backers Unfazed By Opinion"

The Washington Post offers this report.

"Lawyers, Votes and Money in House Fight"

The latest on the NY-20 race.

"Voter ID Bill Heads to Governor's Desk"

The latest from Oklahoma.

LA Times Editorializes Against Feingold Proposed Senate Vacancy Amendment

Here.

"Franken Puts Pawlenty in a Jam"

Politico offers this report. See also this Star-Tribune report.

"Breaking the Rule: How Politics, Privilege, and the Ten Percent Rule Are Obfuscating One Person, One Vote Claims - And What Should Be Done About It "

Stephanie Cerkovich as posted this draft on SSRN (forthcoming, Cardozo Law Review). Here is the abstract:

he Supreme Court's uneasy relationship with reapportionment began the moment it announced the one person, one vote principle - the idea that fair representation requires a state's electoral districts to be equal in population. The Court's struggle to create a consistent body of reapportionment jurisprudence is well - documented, though much of the scholarly attention has focused on racial and political gerrymandering claims rather than numerical gerrymandering or pure one person, one vote claims. Yet one person, one vote claims pose a serious threat to our judicial and political systems, because they consume scarce public resources while being virtually unwinnable. This is particularly so in cases where states have reapportioned their own electoral districts to deviate from the one person, one vote mandate of equipopulousness by close to ten percent. While the Court in Brown v. Thomson has sanctioned such deviations as constitutionally permissible - articulating what has come to be known as the ten percent rule - it has never explained its reasoning or how it arrived at the ten percent figure. As a result, the ten percent rule has engendered confusion among lower courts and created a false sense of security for states engaged in the reapportionment process. The rule's ambiguity is further complicated by the partisan nature of reapportionment and the doctrine of legislative privilege.

This Note describes how the Court's uneven treatment of the one person, one vote doctrine has intersected with partisanship and legislative privilege to create a record of fruitless litigation and blur the line between political, racial, and numerical gerrymandering claims. The Note also suggests that contrary to what many scholars have suggested, eliminating Brown v. Thomson's ten percent rule is an efficient means of restoring integrity to one person, one vote jurisprudence while remaining faithful to the doctrine itself.

"NIST Issues Open and Transparent Methods for Testing Electronic Voting Systems"

See this press release.

Bauer, McCain Staff, Still Mixing It Up

Politico has this story on Bob's blog post from yesterday on Sen. McCain's recent statements about public financing. A snippet: "Salter, who now has no formal role with McCain, called Bauer "'quite a character... public corruption doesn't worry him and the truth doesn't have much value to him.'"

How to Achieve Life/Work Balance, Politico-Style

From the management:

We understand this will require a change of habits for many of you. To be blunt, the summer doldrums that we have warned of in the past have set in a bit earlier this year. This morning, as on many mornings, Mike Allen and we both observed that the newsroom was largely empty at 6:30 [a.m]. It's hard to win if you aren't even in the game.

By no means do we expect people to work all the time. All of us have to balance work with other obligations. You should try to carve out personal time, if you need it, in the mid-afternoon hours when Web traffic naturally tends to slow a bit. But we certainly need to be back in the newsroom by the late afternoon hours in order to meet print deadlines and also to "Win the Evening in time for the network newscasts and cable political talk shows.

UPDATE: Apparently this is an April Fool's prank. But given my observation of how these journalists work, it doesn't seem too far off the mark.

"Fixing the U.S. Election System: Is a Democracy Index the Answer?"

The AEI-Brookings Election Reform Project will hold this event on Heather Gerken's new book, "The Democracy Index," on April 7.

"L.A. County to study using instant runoff elections"

The LA Times takes note.

"Situation Normal: Election Too Close to Call"

Ned Foley offers this comment on the NY-20 race.

"High Court to Weigh Relevance Of Voting Law in Obama Era"

The Washington Post offers this front-page report. It concludes: "And whether or not the suit is successful, Ferguson said, the utility district may not be subject to the provisions of the Voting Rights Act much longer. If all goes according to plan, he said, the board is going to pay off the bonds that paid for the sewers that laid the foundation for Canyon Creek, fix up the neighborhood park and turn it over to the city of Austin, and go out of business."

Two Different Views of the AG's Office and the DC Voting Rights Bill

Following up on this post, see the views of Mike Stern and Bob Bauer.