"Methodological Advances and Empirical Legal Scholarship: A Note on Cox and Miles's Voting Rights Act Study"

Nancy C. Staudt and Tyler J. VanderWeele have posted this reponse to the Cox and Miles study at the Columbia Law Review Sidebar. Here is the synopsis:

One notable difference between early empirical legal scholarship and the more recent sophisticated contributions to the literature is scholars' goal of identifying cause and effect relationships. Professors Cox and Miles's recent study of judicial decisionmaking provides a terrific example of this new-generation work.[1] The authors investigate whether personal attributes such as ideology, race, or gender cause judges to favor (or disfavor) plaintiffs' claims under section 2 of the Voting Rights Act. The study is a valuable contribution to the emerging body of empirical scholarship exploring causal relationships, and to the work on judicial decisionmaking and voting rights litigation in particular.[2]

Causal inference, as opposed to making claims about mere correlations, is, of course, an ambitious undertaking. Investigators must spend time and energy exploring the underlying relationship between and among the variables of interest in order to identify possible bias and confounding in their data and, importantly, to address these perceived problems with appropriate conceptual and statistical methods.[3] If bias and confounding exist but are not--or cannot be--remedied, scholars must exercise humility in reporting empirical results: They may point to interesting correlations in the data, but causal claims would be completely unjustified.

In this Response, we use Professors Cox and Miles's study of judicial decisionmaking to explore what is at stake when legal scholars present empirical findings without fully investigating the structural relationships of their data, or without explicitly stating the assumptions they make in order to draw causal inferences. We do not intend merely to identify the limitations of Cox and Miles's work (and by implication, those of many other empirical studies published in the extant legal literature); rather, we plan to introduce a new methodology that is intuitive, easy to use, and, most importantly, allows scholars to systematically assess problems of bias and confounding. This methodology--known as causal directed acyclic graphs--will help empirical researchers identify true cause and effect relationships when they exist, and at the same time posit statistical models with appropriate controls, in order to better justify causal claims. While this methodology has become popular in a number of disciplines--including statistics, biostatistics, epidemiology, and computer science--and is widely believed to be a valuable tool for empirical research, it has yet to appear in the empirical law literature. Accordingly, our goal is to offer a brief introduction of the method and to initiate discussion as to its worth in empirical legal studies.

"'Blog Entry' Sparks Furor Over Sotomayor"

The Jeff Rosen experience teaches an important lesson for all legal bloggers.

"Will the British rank the vote? Burst of interest in IRV and PR across the pond"

Rob Richie blogs.

"Minnesota's Senate Race Now Comes Down to Five Votes"

The Star Tribune offers this report.

"EXCLUSIVE: Career lawyers overruled on voting case"

The Washington Times offes this report, which begins: "ustice Department political appointees overruled career lawyers and ended a civil complaint accusing three members of the New Black Panther Party for Self-Defense of wielding a nightstick and intimidating voters at a Philadelphia polling place last Election Day, according to documents and interviews."

See also here.

"A Long Record on Campaign Finance, Often in Support of Regulations"

The NY Times offers this article on Judge Sotomayor, linking to this blog post of mine on the judge's election law jurisprudence.

"The Talk, and the Talk, and the Talk, of Austin"

The NY Times offers this report on the Texas voter id dispute in the state house this past week.

"Coleman appeal heads to state's highest court"

MPR offers this report about Monday's hearing before the Minnesota Supreme Court in the Coleman-Franken case. Barring the release of election law opinions in the U.S. Supreme Court, I hope to live blog the oral argument on Monday. I should have an oped on the case also appearing Monday morning in the LA Times.

More on Judge Sotomayor and Campaign Finance

LIsa Danetz and Fred Wertheimer.

In my view, there is no reason to think Judge Sotomayor's positions differ in any important way on these questions from the views of Justices Breyer, Ginsburg, Souter and Stevens.

"The Future of the Voting Rights Act"

FairVote and the New America Foundation will hold this conference on June 30. See also this newsletter.

"Why Is the FEC Withholding Documents From the Public in Violation of Its Own Regulations and Policy Statement?"

Paul Ryan asks.

"Garrett Withdraws as Obama's Top Tax Policy Official"

Via TaxProf blog comes this surprising news.

"A steep fall for patriarch of tiny, industrial Vernon"

A must-read for the Vernon junkies on my blog.

"Sonia Sotomayor: No empathy for campaign cash"

Politico has this important article on this 1996 law review article co-authored by Judge Sotomayor. The material discussed in the article is the text accompanying notes 28-30 and 58-60.

As I stressed to the Politico reporter, the article makes clear that as a matter of policy, the judge believes reasonable campaign finance regulation serves important anti-corruption and other interests. But that does not necessarily tell us how the judge would rule as a Justice on the Supreme Court facing campaign finance statutes challenged under the First Amendment. A better way to judge that (though still not perfect, because lower court judges feel more bound to follow existing Supreme Court precedent than sitting members of the Supreme Court do) is to look at how the judge has ruled in election law cases.

Chemerinsky on the Problems with a Constitutional Convention in Calfornia

Don't miss this LA Times oped.

"Nader Accuses McAuliffe of Suppressing Votes"

Washington Post: "Consumer activist Ralph Nader accused Terry McAuliffe Thursday of orchestrating an effort to remove him from the presidential ballot in 2004 when McAuliffe was chairman of the Democratic National Committee. Nader said that McAuliffe offered him an unspecified amount of money to campaign in 31 states if Nader would agree to pull his campaign in 19 battleground states."

AEI Forum June 4 on Wallison-Gora Book

Details here.

Viewing Judge Sotamayor Through Her Election Law Decisions: Careful, Thoughtful, Mainstream Leaning Left

Armed with a list of Judge Sotamayor's opinions and judicial votes in the election law field helpfully compiled by Bryan Sells, I set out to see what I could learn about the judge. Though I had read some of the opinions on the list in the past, I had not focused on the author of those opinions, nor did I consider these opinions as a body of work.

I went into this analysis with low expectations, hearing questions about the judge's intellect (questioning her ability to be an "intellectual counterweight to the conservative justices,"), her writing style ("not always a pleasure to read"), and even her ability to write in English ("the absence of soaring rhetoric"). Though the body of work is relatively small, I came away impressed with the judge's intellect, reasoning, and writing ability. I also found her jurisprudence to be on the mainstream left, no different from the kind of opinions I would expect from Justices Breyer, Ginsburg, or Souter. Finally, despite questions about her temperament, at least in writing she comes across as a judge who is respectful of litigants and careful about her judicial role (I cannot comment on how she might come across at oral argument). Whether or not these election law opinions are representative of Judge Sotomayor's appellate opinions generally I cannot say. Below, I give a few more details, drawing on the cases cited in the list.

Judge Sotomayor's Political Valence. The Second Circuit has considered two heated election law disputes in recent years, both being considered for en banc consideration by all the judges on the circuit. The first set of cases involved whether felon disenfranchisement laws could be found to violate section 2 of the Voting Rights Act, given the great effect of such laws on minority communities. The second question concerned the constitutionality of Vermont's campaign finance spending limits. In both cases, Judge Sotomayor was on the "left" side of the issue. She took the position that felon disenfranchisement laws could violate section 2, based upon her reading of the plain text of the statute. (In that regard, she was joined by other mainstream judges, including Judge Calabresi.) In the campaign finance case, she voted with a majority of other judges opposing en banc reconsideration of the case. That vote would have allowed Vermont's spending limits to go into effect temporarily, pending additional hearings before a federal district court. (The U.S. Supreme Court eventually reversed in this case, Randall v. Sorrell.) Her vote was a procedural one, not on the merits of the spending law. She considered the appropriate standard for en banc review in the Second Circuit. But the effect of her vote was to allow a strict campaign finance regulation to remain in place, albeit temporarily.

In other cases, too, Judge Sotomayor has leaned left on election law issues, but not hard left. She allowed a pro se litigant to push his case for the right to be a write-in candidate in an election, though she ultimately rejected his claims applying existing precedent. A judge with more radical views would have allowed that case to go further She upheld a law barring court fiduciaries from holding leadership positions in political party organizations, consistent with the longstanding constitutionality of the Hatch Act. She upheld a law denying small minor parties official party status on the ballot, and one barring the payment of paid petition circulators by the signature (a ruling consistent with at least two other circuits and in conflict with at least one other).

Perhaps the greatest outlier is the Lopez Torres case. She voted with two other judges on a unanimous panel to strike down New York's method of choosing certain judges, an opinion the Supreme Court unanimously reversed (Lopez-Torres v. New York State Board of Elections). But in another case involving judicial elections, she was less disturbed by the unfairness of the process and rejected a losing candidate's constitutional claims.

As a whole, I think that virtually every position she had taken in these cases (besides Lopez Torres) would get the votes of the more liberal members of the current Supreme Court, and some of the positions would get the votes of some of the more conservative members as well. Her opinions show great care, recognizing when precedent is clear and when it is not.

Judicial role and modesty. It is notable that in the felon disenfranchisement case, Judge Sotomayor relied upon clear statutory text (often a position of more conservative judges) and deference to the clear words of Congress. In the write-in candidate case, the judge bent over backwards to make sure that a pro se litigant's claims were not knocked out of court simply because the litigant drafting the pleadings himself. She helped recast the claims in a clear way. But she didn't show too much sympathy when it came to the merits. After she helped get pro bono counsel for the litigant, she considered and then rejected his claims. (In the same set of cases, she also brought to counsel's attention the role she had played on the NYC Campaign Finance Board before she took the bench, and considered--apparently without being prompted--whether that should cause her recusal in the case. She concluded: "I see no reason to recuse myself from this motion, but I invite the parties to inform me of any facts that might warrant reconsideration of this decision.")

Writing Style It is true that Judge Sotomayor doesn't write with the same flair (and snark) of Justice Scalia, or Judges Calabresi, Posner or Kozinski, but most judges don't. But neither does she write like Judge Souter, whose opinions won't make it into any book on exemplary judicial writing. Her writing is clear and straightforward. She doesn't hide the ball. She focuses on the right things. If you told me that English was not her first language, I would not believe you.

"The Court's NAMUDNO Decision: Judging the Costs and Efficiency of Preclearance"

Kareem Crayton has written this commentary for Findlaw.

"Thank B.C. for winning its PR war; Proportional representation may look more democratic, but it comes at too high a price"

Lysiane Gagnon has written this opinion piece for The Globe and Mail.

"Voting Rights-and Wrongs: The Elusive Quest for Racially Fair Elections"

This event about Abby Thernstrom's new book will be held at AEI on June 11.

"Texas House Democrats Stop Voter ID Bill"

AP offers this report.

"Prop 8 Stands; More Ballot Battles Ahead"

The SF Chronicle offers this report.

Will Chief Justice Roberts "Hold Back" in NAMUDNO?

Linda Greenhouse: "Whether Chief Justice Roberts has developed a Rehnquist-style sense of when to hold back will be evident next month, when the court is expected to decide whether a central provision of the Voting Rights Act, renewed almost unanimously by Congress three years ago, is constitutional. Based on the deep skepticism he expressed when the case was argued last month, the answer is no."

"Sotomayor Not Seen Changing Stance Of Court on Campaign Finance Issues"

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

"STATEMENT OF CFB CHAIRMAN FATHER JOSEPH P. PARKES, S.J. ON THE APPOINTMENT OF FORMER BOARD MEMBER SONIA SOTOMAYOR TO THE SUPREME COURT"

The New York City Campaign Finance Board has issued this press release. Judge Sotomayor was a founding member of the board. If nothing else, it suggests she is not hostile to all or most regulation as are some members of the current Supreme Coutr.

What Does Jan Crawford Greenburg Know?

Her must-read post on the Sotomayor nomination ends: "But a second vacancy could soon be in the cards."

"Lawyers' Committee Files Comment Letter Urging DOJ to Interpose a Section 5 Objection to a New Program for Verification of Voter Registration Data"

See here. It will be interesting to see how the Obama Administration's DOJ will rule on this, assuming Section 5 continues to have force after the NAMUDNO decision.

"Candidate Kobach claims widespread voter fraud"

Election law professor Kris Kobach to run on anti-voter fraud platform for Kansas Secretary of State.

"First Amendment Victory: Federal Court Strikes Down Florida's 'Electioneering Communications' Law"

The Institute for Justice has issued this press release about this opinion issued by a Federal District Court for the Northern District of Florida.

"SOTOMAYOR v SESSIONS: Obama Supreme Court nomination sets up battle over voting rights"

This post appears at the "Facing South" blog.

A Few Thoughts on the Prop. 8 Opinion from the Perspective of Election Law

There is certainly much to be said about the California Supreme Court's set of opinions in Strauss v. Horton from the perspective of the gay rights/gay marriage issue. I leave those issues to people who have thought about them more closely and carefully than I have. Here, I just advance a few points from the perspective of election law.

1. Under the California Constitution, the people have the power through the initiative process to amend the state constitution, but not to revise it. The California Supreme Court had never fully articulated its theory as to what counts as an improper revision. Some of the cases suggested the issue had to do with changes to governmental structure, but others did not. At least some of the cases involving a revision concerned an initiative impinging on the power of the judicial branch. In today's opinion, the majority adopts a clearer---though narrower--vision of the meaning of constitutional revision. "In our view, a fair and full reading of this court's past amendment/revision decisions demonstrates that those cases stand for the proposition that in deciding whether or not a constitutional change constitutes a qualitative revision, a court must determine whether the change effects a substantial change in the governmental plan or structure established by the Constitution." I agree with Justice Werdegar's concurrence that this has not been the law in California in the past, but it is the law now. I expect there to be fewer successful challenges to initiatives as unconstitutional revisions under this standard.

2. The California Supreme Court rejects the argument that an initiative cannot constrict fundamental rights. At page 97, the court points to an 1894 referendum [corrected] that removed the right to vote for those not literate in English: "An additional, quite dramatic example of a constitutional amendment, proposed by the Legislature and adopted by a majority of voters, which diminished the state constitutional rights of a disfavored minority group, is the 1894 amendment to the California Constitution that entirely withdrew the right to vote from all persons not literate in the English language. (Cal. Const., former art. II, s 1 [as amended at Nov. 6, 1894 election].) This provision of the California Constitution remained in effect until 1970, when this court struck it down as a violation of the federal Constitution. (See Castro v. State of California (1970) 2 Cal.3d 223, 232-243; id. at pp. 230-232 [discussing history of the 1894 amendment and concluding that '[i]t is obvious that fear and hatred played a significant role in the passage of the literacy requirement'].) As with the challenges to each of the other constitutional amendments that have diminished state constitutional rights of minority groups since the time the 1894 measure was adopted, no claim was made that the addition of the voter literacy requirement represented a constitutional revision." A question to consider is whether the state supreme court is to some extent taking away its power to read the fundamental rights provisions in the state constitution more broadly than the federal constitutional analogues.

3. Finally, it is notable that the Court writes as if in a dialog with the people (this is most evident in Justice Kennard's concurrence). The sense I get is that the court expects its initial position upholding gay marriage to be vindicated, soon enough, by the people at the ballot box.

"Dems seek concessions over voter ID"

The Houston Chronicle offers this report.

The Other Big Story of the Day

The California Supreme Court will release its decision in the Prop. 8 lawsuit at 10 am Pacific today. Among the issues expected to be addressed are the difference between a state constitutional amendment and revision.

It is interesting to think about how this ruling would have been anticipated had President Obama chosen California state supreme court Justice Carlos Moreno (who may well dissent from parts of today's ruling) as his nominee.

Stuart Taylor on the Politics of the Sotomayor Nomination

He writes: "But the political payoff of naming the first Hispanic justice -- and a woman to boot -- seems to me the key. This is a shrewd nomination politically, if not necessarily a good one jurisprudentially, and not only because of the obvious payoff with Hispanic voters."

Halperin: "But Obama has chosen a mainstream progressive, rather than a wild-eyed liberal. And he has chosen a rags-to-riches Hispanic woman. Her life story is inspirational -- a political consultant's dream. Since she is certain to be confirmed, there are plenty of smart conservatives who will, by midday Tuesday, have done the political cost-benefit analysis: at a time when Republicans are trying to demonstrate that their party can reach beyond rich white men, what mileage is there in doing anything but celebrating such a historic choice?"

Winger on Judge Sotomayor's Election Law Opinions

See here. I hope to do my own assessment of those opinions later this week.

Sotomayor!

Wow. It will be interesting to hear about what led the President to make this choice, rather than the choice of Judge Wood, which is what I and a number of others were expecting. Age? Identity politics? A read of the appellate opinions?

"Favorites of Left Don't Make Obama's Court List "

This NY Times article begins: "Pamela S. Karlan is a champion of gay rights, criminal defendants' rights and voting rights. She is considered brilliant, outspoken and, in her own words, 'sort of snarky.' To liberal supporters, she is an Antonin Scalia for the left."

"End Run on Free Speech"

George Will's latest column attacks Zephyr Teachout's new campaign finance article, "The Anti-Corruption Principle."

"Parliamentary stalemate continues in House"

The Fort Worth Star-Telegram offers this report, which begins: "AUSTIN -- Scores of bills were in danger Saturday as House members remained in parliamentary gridlock from Democratic stalling tactics aimed at killing voter-identification legislation."

"A golden opportunity to revamp the Voting Rights Act"

Guy Charles and Luis Fuentes-Rohwer have written this LA Times oped. A snippet: "Although it is politically incorrect to say, and it pains us as good liberals to admit it, the court's striking down of Section 5 would actually help move voting rights policy into the 21st century." It concludes:

But let's be clear: Though striking down the Voting Rights Act might be good for the country, it also would be a radical move for the court. The power of Congress to protect the right of citizens to vote without racial discrimination is explicitly provided for in the Constitution, which cannot be said for the power of the courts to strike down federal statutes.

The fact that the self-described "strict constructionists" on the court would be the ones striking down this landmark statute reveals the poverty of the conservative argument against judicial activism. We are all judicial activists now and have always been so.

Nevertheless, the current Voting Rights Act is outdated. Liberals who reflexively defend the outmoded policy are as insensitive to the political rights of voters of color as their conservative counterparts who maintain, without evidence, that race no longer plays a role in the democratic process. If, however, the court's "strict constructionists" strike down Section 5, we won't shed any tears. And if you care about voting rights policy, you shouldn't either. Political correctness be damned.

A State Constitutional Convention Fixing California's Structural Governmental Problems as the Price for a Federal Bailout?

That's the deal Joe Mathews proposes in an NYT oped:

Most important, President Obama should press California's elected officials and its voters -- 61 percent of whom supported him last November -- to make constitutional changes. Among these would be the elimination of the gridlock-creating two-thirds vote for budgets and tax increases, and new curbs on ballot initiatives that mandate spending for popular programs without identifying new tax dollars to pay for them.

"Pawlenty vetoes Motor Voter registration bill"

The Star Tribune offers this report.

"Controversial voter ID bill threatens walkout at Texas Capitol"

The latest from Texas.

"Director's Note: Would the Last One out Please Turn out the Lights?"

That's the lead in the latest Electionline Weekly.

"3-3 Votes On The FEC: Why So Frequent? What Do They Mean?"

Larry Norton and Friends:

So is anything different now? Yes and no. The current crop of 3-3 votes, while split along party lines, certainly cannot be characterized as protecting party members and loyalists. The three Democrats are repeatedly voting to proceed in these cases, while the three Republicans are voting to shut each matter down. In the current Commission, votes are cast regardless of whose ox is being gored.

But certain things are quite different now. Many of the stalemates depart from recent precedent in a wide range of important issues, such as regulation of political activity by 501(c) and 527 organizations, rules for candidates' testing the waters, coercion of campaign contributions, and liability for false reports stemming from embezzlement. In fact, statements issued recently by the Republican Commissioners give little deference to the FEC's determinations in prior enforcement matters and in many instances reflect a profound unease with using the Commission's investigative powers. There's also been a much sharper tone in statements released by both the Democratic and Republican sides that reveal a growing sense of frustration.

Judge Wood and the Conventional Wisdom

The common wisdom now catches up. Intrade too now reflects Wood in the lead.

My analysis of Judge Wood's election law opinions is here.

"Herbkershman, Richie: Time to run off runoffs"

See this oped in The State.

Views of Assistant AG for Civil Rights Nominee Perez on Voter ID and Crawford

Via this post at BLT on delays in the judiciary committee's consideration of two appellate court nominees and DOJ Nominee Thomas Perez comes these answers from Mr. Perez on voting, voter id, Crawford, and overseas and military voting.

Roll Call Editorial on Military Voting

Here.

"Tiebreaking Vote Cast by Dead Man; Runoff Required"

Really.

"Poll: Coleman should concede, voters say"

The Star Tribune offers this report.

"Even if voter ID comes up, it may not pass the House"

This post appears at the Dallas Morning News opinion blog.

Judge Wood and Election Law

With speculation continuing to swirl about the possibility that President Obama will nominate Judge Diane Wood of the Seventh Circuit to the Supreme Court, I thought I would take a look at some of the judge's opinions in the field of election law. My bottom line: though there is not much to go on, Judge Wood's opinion in the Crawford dissent from denial of rehearing en banc makes me confident that she would bring a welcome and nuanced approach to election law questions. It is not clear, however, where she stands on campaign finance issues; it should be noted that some other eminent short-listers have a deregulatory view of campaign finance regulation that places them closer to Justice Thomas than to Justice Souter on this question.

In any case, here's the little I've found so far.

Via this SCOTUSBlog post comes a reminder that Judge Wood wrote a very thoughtful and subtle dissent from denial of rehearing en banc in Crawford v. Marion County Election Board, the case concerning Indiana's voter identification law. Judge Wood's analysis of the standard to apply in reviewing such laws is well worth reading, and she was right on the money in saying that the standard for reviewing under Burdick v. Takushi is not clear. Indeed, the Supreme Court's opinions Crawford, reviewing the same case, have further muddied the waters on this question. Interestingly, I think Judge Wood's position in Crawford comes close to the position that Justice Souter articulated in his Crawford dissent.

Judge Wood also wrote the opinion of unanimous 3-judge-panel in a Voting Rights Act case in 2000, Harper v. City of Chicago Heights. The opinion reads to me as squarely in the mainstream of VRA section 2 decisions. Of note, Judge Wood rejected a cumulative voting remedy proposed for Voting Rights Act violations because under existing Supreme Court precedent, the court is to defer to the proposed remedy put forward by the defendant in the case. She was careful to note, however, that her opinion "should not be understood as a condemnation of cumulative voting."

Judge Wood, writing for herself and Judge Posner in the 1998 case of Bradley v. Work held that judicial retention elections were subject to section 2 of the Voting Rights Act, but that the plaintiffs could not prove a voting rights act violation under Lake County, Indiana's judicial retention election system. Judge Manion, concurring, did not believe section 2 applied to judicial retention elections.

Finally, Judge Wood concurred in an opinion written by Judge Posner in Nader v. Keith, a ballot access case in which Judge Posner opines on the role of third parties in American politics. (Richard Winger offers scathing criticism of that opinion from the perspective of a strong believer in third party rights.)

"Judge recommends dismissal of Ohio ACORN lawsuit"

The Michigan Messenger reports.

"California voters exercise their power -- and that's the problem"

Michael Finnegan offers this perceptive analysis in the Los Angeles Times. I don't think a state constitutional convention is beyond the realm of possibilities at this point in California.

"Top Coleman Fundraiser Concedes Growing Hardship, But Presses On"

WaPo's The Plum Line blog reports. More from NBC News.

"St. Louis Election Board claims 50 people committed vote fraud"

This will be interesting to watch. As I understand it, there's been a lot of politics over this issue in St. Louis.

Noveck on "Campaign Finance Disclosure and the Legislative Process"

Scott Noveck has posted this draft on SSRN (forthcoming, Harvard Journal on Legislation). Here is the abstract:

This Article analyzes an underappreciated and oft-overlooked method of campaign finance regulation, the use of reporting and disclosure requirements. The Article demonstrates that both sides of the campaign finance debate have failed to recognize the full range of possible disclosure schemes, and it argues that a particular set of disclosure requirements can have a much more dramatic effect on the legislative process than has previously been recognized. Moreover, I show that a carefully crafted disclosure scheme can offer an effective solution to the problem of quid pro quo corruption (i.e., political bribery) and can overcome the serious constitutional concerns about retaliation that have been raised both by the Supreme Court and by several scholars.

My argument proceeds in four parts. Part I examines the two main policy justifications offered in support of campaign finance reform -- egalitarian concerns about the distortionary effects of money on politics, and bribery-like concerns about quid pro quo corruption -- and shows that these two competing rationales have drastically different implications for the permissible scope of campaign finance regulation.

Part II then briefly reviews the Supreme Court's campaign finance jurisprudence and shows how the Court's notion of corruption as a compelling government interest has shifted between these two different rationales. The result is a doctrine that leaves considerable uncertainty as to how far reformers may go to advance egalitarian ends through direct restrictions on campaign funds. The Court's decisions appear more receptive to the use of reporting and disclosure requirements as an alternative, but the constitutionality of disclosure schemes that identify individual campaign contributors rests on extremely fragile foundations that have recently begun to unravel.

The final two Parts narrow in on the issue of disclosure. Part III identifies two model approaches, the full disclosure model and the information-suppressing model, but argues that neither proves entirely satisfactory. Part IV argues for the virtues of a more nuanced, selective approach to the disclosure problem. After first showing how the reporting of aggregate rather than individual-level disclosure data can both solve the problem of quid pro quo corruption and overcome the First Amendment concerns that threaten current disclosure schemes, it then demonstrates how the proper set of reporting and disclosure requirements should be determined by our view of the legislative process and what we mean when we talk of political corruption.

von Spakovsky Responds on NAMUDNO Standing Question

I have posted at this link Hans von Spakovsky's response to Gerry Hebert's suggestion that NAMUDNO's challenge to section 5 may fail on standing grounds. The response begins:

Several recent blog posts and chatter in the election law world shows that supporters of s5 are despairing after the April 29 oral argument. This fear has led to some real reaching and produced some very flawed, if creative, post hoc arguments for how the Court could avoid reaching the merits of the case. In an unfortunate example of ex parte blogging, one of the counsels to a party in NAMUDNO in the district court who wrote an amicus in the Supreme Court has argued for dismissal of the case on a technicality that was never raised by any party or amicus in the case. This follows others' discussions of avoiding an adverse decision through quick congressional action to fix the coverage formula. But Rick Hasen was right to describe the latter as an "admittedly crazy thought," and the particular argument that the Court can avoid determining whether Section 5 remains constitutional on standing and ripeness grounds doesn't stand up to scrutiny (strict or intermediate).

More Judge Wood Rumors

Here. AND Jeff Rosen endorses.

Another Special Election Drubbing: Reports of Hybrid Democracy's Life are Greatly Exaggerated

In a replay of 2005, all of the budget measures supported by Governor Schwarzenegger in a special election are going down to defeat (The only exception is Proposition 1F, which would limit legislators' salaries under certain circumstances.) Here, in Los Angeles, it was hard to tell that it was election day. Attention was focused on more inspirational matters.

As I have argued, despite rhetoric to the contrary, the Schwarzenegger years have not ushered in a vigorous "hybrid democracy," in which voters partner with the state legislature to direct policy. Instead, the devices of direct democracy remain too blunt and expensive as tools for anything but interstitial governance. The direct democracy power in this decade has been primarily a negative one: no to Governor Davis in the 2003 California recall; no to Gov. Schwarzenegger's package of budget reforms in 2005; and no to the latest Schwarzenegger-Democratic Legislature package rejected tonight. (Unsurprisingly, the rates of passage of initiatives and ballot measures is no higher in this decade compared to others.)

The one potential exception to this rule: electoral reform. Californians passed a redistricting reform measure last year, and, thanks to the demands of a moderate Republican legislator who forced it as part of last year's budget package, California voters will consider a "top two" primary next year. It would not surprise me if Gov. Schwarzenegger gets behind a measure to lower California's supermajority requirement for approving budgets as well. That's the more modest version of hybrid democracy that might work in this state.

But in the meantime, the state can expect some pretty tough budgetary times ahead.

More Reason to Continue to Think Judge Diane Wood Will Be President Obama's First SCOTUS Nominee

Following up on this post, see here.

"Election Commission Dimisses Claims vs. Wal-Mart"

AP reports.

"The Incumbency Problem Has Everything to do with Money"

This post by Brennan Center for Justice Attorney Ciara Torres-Spelliscy appears at The Hill blog.

"The Republican Commissioners and the Meaning of the Deadlocks at the FEC"

Written version of a recent presentation by Bob Bauer.

"The Voting Rights Act, the Souter Vacancy, and the Future of the Supreme Court"

David Gans has this post at Balkinization.

CREW Complaint Against Gov Palin and RNC: No Wardrobe Malfunction

The FEC has rejected a complaint against the RNC's purchase of clothing for Gov. Palin and her family when Palin was the Republican vice presidential candidate.

From what has been released thus far, there is no indication of any dissents. But the information is not in the public file yet.
More here.

BNA on FEC Wal-mart Split

See here ($).

"Pawlenty caught between Senate rock and recount"

AP offers this report. See also this Politico report and this report in the Minnesota Independent.

"High court won't delay trial of ex-Rep. Jefferson "

AP offers this report.

"Campaign Finance Rules May Take a Beating"

Eliza's latest, reporting from the recent Brennan Center event.

Toobin Profile of Chief Justice Roberts in The New Yorker

The lengthy article discusses the oral argument in NAMUDNO, the Court's decision in WRTL II and other recent cases and controversies.

"Parties Prepping for Redistricting Fight"

Roll Call offers Part I of a two-part must-read series ($).

More Coverage of the Final Coleman Brief

Pioneer Press

Politico.

CQ Politics

Star Tribune

MPR/AP.

von Spakovsky Against Section 5 in the Clarion-Ledger

Here. UPDATE: This was part of a "yes-no" debate on Section 5. The "yes" side, by Robert McDuff and Ellis Turnage, is here.

Another ACORN Conspiracy Theory Leading Nowhere

Don't miss this public editor column in the NYT. (UPDATE: A different view of the evidence at Powerline.)
MORE: But new allegations emerge.

"How to elect the president: A national debate"

Here are ten views of the electoral college at the San Diego Union Tribune website.

"GOV. RITTER SIGNS SIX ELECTION AND VOTING REFORM BILLS"

See this press release about recent election law legislation in Colorado, inclluding online election registration.

"John G. Matsusaka: Prop. 1A won't cure state's overspending"

John Matsusaka has written this Sac Bee oped.

Initial Thoughts on Coleman's Reply Brief

I have now had a chance to quickly read through Coleman's reply brief. This post assumes the reader is familiar with my posting of initial thoughts on Coleman's opening brief and Franken's brief.

1. A reply brief tries to draw a court's attention back to what the appellant believes is really important, and this brief is no exception. Almost the entire brief is dedicated to the constitutional argument (alternately sounding in equal protection and due process) that the trial court erred in failing to count 4,400 absentee ballots that should have been counted under laxer standards for absentee ballots applied by some counties. The preferred remedy is a remand to the trial court to count ballots under the laxer (substantial compliance) standard. This argument is not new, but it is more effective in this brief than in the opening brief because it is more highly focused. (There's also a fair bit of attention paid to whether or not these arguments were waived, as Franken contends, showing that the Coleman team thinks this is a serious enough argument to devote a few pages to.)

2. As I said in describing this argument as it appeared in the opening brief, this is not a frivolous argument. But it depends upon a very liberal construction of Bush v. Gore (as I explained here). My irony meter went off the charts when I saw the Coleman team citing to the district court opinion in Black v. McGuffage, a federal district court opinion in Illinois reading Bush v. Gore liberally to hold that the use of unreliable punch card balloting in only part of a state constitutes an equal protection violation. (It is an argument that, as I show here in way too much detail, has been rejected by most of the appellate courts that have considered it.) It is an argument applied to the context of election contests with unpalatable policy consequences for courts. To accept it would require courts considering election contests to order recounts using lax standards whenever such lax standards were used by some election officials in a jurisdiction, but not by all. (As an aside, it is not clear how this would solve any equal protection problem, because the count would still include ballots counted under a strict standard in some of the jurisdictions.)

3. I see the argument on pages 14-15, arguing for a due process violation under Roe v. Alabama, as setting up the potential follow-on federal lawsuit that some Republicans have threatened. I think the argument is likely to fail. I've written about Roe's application to this case in detail here. This case is Roe turned on its head. In Roe a federal court blocked a state court from using a new, laxer standard to review absentee ballots. Coleman would be trying to use Roe to get a federal court to require a state court to use a laxer standard in a recount, on grounds that some jurisdictions in Minnesota had used that standard. Aside from the fact that courts would have to swallow hard to read lax interpretation of election laws as a constitutional requirement (though I've argued that outside the context of election contests they should be read in favor of the voters as a matter of policy), there was no uniform state policy of laxity in Minnesota in treating absentee ballots, as there was uniformity of strictness in the counties in Roe. Moreover, in this case you have existing state Supreme Court holdings that absentee ballot laws are to be read strictly, which is what the trial court did in this contest.

4. The Coleman brief does not address the question of whether the state supreme court should order certification at the end of this case.

5. Oral argument is set for June 1. I would expect a decision not too long after that. The court now has two weeks (and three weekends) to get a draft opinion (or opinions) together in advance of oral argument. For that reason, I also don't expect oral argument to make much difference in this case.

Franz on FEC Deadlocks

Responding to this post, Mike Franz sends along the following thoughts:

I saw your post on FEC deadlocks--I've been pondering this myself, especially in light of my forthcoming piece. I don't have the vote data updated yet for this current time period, but my suspicion is that this is very unprecedented. And very much an indication of increased partisanship on the Commission.

If I read the Wal-Mart statements correctly (and I only scanned them), the Democratic Commissioners voted against the advice of the General Counsel's report. Granted, this action was for stronger regulation, but the perception--I believe--is that GOP commissioners "disrupt" the regulatory process by dissenting from the Democratic Commissioners' AND the General Counsel's desire to more strongly enforce the law. In other words, in the Wal-Mart case, the GOP commissioners were voting WITH the recommended legal advice.

All told, the argument I make in the paper, that Commissioners dissent more often now than in years past, is confirmed with the FEC in the last year (this despite my not having the data on this last year). But I don't think I expected this many 3-3 splits. I still feel that much of this current partisanship is driven by serious disagreement about the scope of the law, and not a conscious project by GOP commissioners to undermine the spirit of the law. But maybe these views are not all that different at the end of the day.

Chapman Responds to von Spakovsky on NVRA

Here, at the Demos blog.

Election Law Casebook Supplement

This is a message for instructors teaching election law in Fall 2009 using Lowenstein, Hasen, and Tokaji, Election Law--Cases and Materials (4th edition 2008). There will be a 2009 supplement to the book, which will cover developments through the Supreme Court's October 2008 term (including, as warranted, coverage of the Court's opinions in Capteron v. Massey, Citizens United, and NAMUDNO).

The supplement will be available in electronic form as a pdf and offered free of charge to those in courses using the Lowenstein, Hasen, and Tokaji casebook. We anticipate the supplement will be ready by late July.

"Supreme Court's Final Weeks Will Be Busy Ones"

AP offers this report, which begins: "Justice David Souter's final few weeks of work will be busy ones for the Supreme Court, which has yet to resolve disputes over a major part of the Voting Rights Act, federal campaign finance law and job discrimination claims by white firefighters."

"Franken, Coleman: Looking ahead to today's last brief"

Eric Black has this post at MinnPost.com. I'll link to the reply brief (and I hope offer a few initial thoughts) when the brief arrives.

"Groves Rules Out Use of Sampling in 2010 Census"

AP offers this report.

More FEC Deadlocks

Here ($). Michael Franz, are the number of deadlocks unprecedented?

More on Standing and NAMUDNO

Scott Rafferty wrote the following post on the election law listserv, which I reprint here with permission:

Rick points to Gerry Hebert's detailed analysis of the distinction between "facial" and "as-applied" challenges in NAMUNDO, arguing that the procedural abandonment of the former might create a way for the Court to avoid a substantive decision in NAMUNDO. I'm inclined to think that the district court was right to construe the amended complaint as retaining a "facial" element and suggest the confusion involves the conflation of several concepts within this dichotomy.

I suggest that we use the term "facial" to mean a number of slight differently things: (1) an exception from standing doctrine for First Amendment plaintiffs prior to any enforcement, (2) self-evident textual invalidity, as opposed to invalidity as a result of consequences, (3) invalidity as a matter of law, without disputable factual arguments, and (4) a rulemaking challenge or other attack on legislative authority, as opposed to an injunction or declaratory relief action.

Dick Fallon has a Harvard Law Review article on facial v. as-applied challenges (and third-party standing) in the First Amendment context, which is a good identification of the issues. 113 Harvard Law Review 1321. Can a pre-enforcement plaintiff challenge a specific application of legislation to its own situation without bearing the burden of a "facial challenge" to show that the four corners of the legislation can never be validly applied? Can a post-enforcement plaintiff obtain declaratory or injunctive relief that goes beyond its own situation? Fallon analyzes these questions as being about the binding nature of precedent and the proper scope of injunctive relief. Facial and as-applied challenges are almost always concurrent, so the distinction - while helpful in explaining why the court grants broad or narrow relief - is seldom dispositive.

However, I have struggled with these terms in the Preminger case, which involves a unique situation in which facial and as-applied challenges are in different courts. The VA banned voter registration, subsequently invoking as Nixon-era regulation giving unfettered discretion not to authorize "demonstrations." (The APA was not extended to the VA until 1982.) The 1982 Act gives Federal Circuit exclusive jurisdiction over the APA rulemaking challenge, which the 9th Circuit confusingly calls the "facial" challenge. The VA effectively argued that ANY substantive challenge that threatened to invalidate application of the rule outside the specific building (in which the arrest was attempted) was a "facial" challenge - and therefore within the exclusive jurisdiction of the Federal Circuit. Then, they told the Federal Circuit that the "facial challenge" was limited to the four corners of the text, and that the Salerno rule immunized the rule if there was a single application (such as a violent demonstration unrelated to voting registration) that would be constitutional - and that any arguments about voter registration needed to be directed to the district court. When the Federal Circuit sustained the rule, the district court decided that the decision, by validating unfettered discretion, deprived the plaintiffs of further standing to bring the "as applied" challenge - and dismissed without deciding the merits. The 9th Circuit disagreed, finding standing but (assuming a few facts not in evidence) "affirming" on the merits. The district court has invited a motion for relief from judgment, which will be heard the day after Memorial Day in San Jose.

The Salerno rule (from an criminal procedure case) states that a statute cannot be declared unconstitutional on its face unless it is unconstitutional in all its applications. The rule has been dismissed as dicta, as a series of cases have allowed pre-enforcement challenges to First Amendment restrictions. The theory here has been that the EXISTENCE of the restriction, prior to any actual enforcement, could infringe speech. A corollary, in my view, is that a post-enforcement challenge can make arguments that logically imply that the legislation can NEVER be enforced, ie, is invalid "on its face." In Preminger, we sought a nationwide injunction of the rule (and declaratory relief), arguing that the Federal Circuit's exclusivity was limited to the formal "setting aside" that removed the rule from the CFR. Otherwise, there would have to be 16,000 as-applied challenges - one for each of the VA's buildings.

Last year's Washington State Grange case revived the Salerno rule in the specific context of an election law case. I think this is bad news for those who think courts should decide constitutional challenges before, not after, election disputes or other highly developed fact patterns, such as a declined bailout petition. But it also suggests that Mr. Hebert may be on to something.

(And advice on this month's Preminger hearing, especially from jurisdictional experts, is always welcome.)

More on NAMUDNO and Standing

Check out Morgan Kousser's recent Texas piece at 763-65.

Another Way Out for the Supreme Court in NAMUNDNO?

I've been very pessimistic about Section 5's chances of surviving in the Supreme Court, going so far as to suggest new congressional legislation that could moot the case. I don't see any movement in that direction.

But Gerry Hebert offers a technicality that could allow the Court to reject the plaintiff's challenge and leave the issue open for another day. You can read his post for the details, but the basic thrust is that, though the district may have standing to raise a facial challenge to the law, in fact in its lawsuit below the district may have abandoned the challenge, raising only an as applied challenge. For reasons Gerry explains, there well may not be standing to bring such an as applied challenge.

If (and it is a big if) Justice Kennedy does not want to decide this case right now, I'm sure he'd find at least four more votes willing to say that there is a lack of standing. The upshot would be that the question of section 5's constitutionality would await a new lawsuit (assuming another jurisdiction not presenting the same standing issues) or an amended lawsuit in NAMUDNO, buying a couple of terms before the issue returns to the Supreme Court. By then, perhaps Congress would have fixed some of the constitutional issues with the VRA, or there could be changes in Supreme Court personnel (though that is not overly likely in a way to influence the outcome of the vote).

Especially if the Court does something bold in the campaign finance case (such as striking down the longstanding ban on the spending of corporate treasury funds in federal elections), it might want to leave the VRA issue for another day.

The Nation Likes the National Popular Vote Plan

See here.

More Bachmann (and Now Beck) on ACORN

Here. The media blitz continues.

Jamie Raskin in Support of the National Popular Vote Plan

See here and here on the ACS blog.

von Spakovsky on DOJ Politicization and the NVRA

See here. MORE: Von Spakovsky on military voters.

Another Partisan 3-3 FEC Split, This One Over Whether Wal-MART was Politically Coercing Its Employees

Democrats v. Republicans.

While Franken's Brief Sees the Coleman Appeal as Simply Wrong, Ned Foley Continues to See Nuances and Complexities

Another dive into the details by Ned.

Has There Been Some Manipulation of the Almanac of the Federal Judiciary to Hurt Judge Sotomayor?

Rob Kar smells a rat.

And in Election Law News from Canada...

The Province offers Liberal Campaigners Tweets Broke Election Law (As I mentioned at my presentation at the Brennan Symposium, I don't tweet)

CTV.ca offers British Columbians Reject STV Voting Reform.

Another Must-Read Symposium

The current issue of the Duke Law Journal features a symposium on "Measuring Judges and Justices." The first thing I'm going to read from this symposium is this article by Brudney and Ditslear that is a follow up to their earlier, pathbreaking empirical piece on substantive canons in the Vanderbilt Law Review. (I relied on that piece heavily in my work on "The Democracy Canon").

The issue also contains the a follow-up to the Gulati and Choi article on ranking judges by Gulati, Choi, and (Eric) Posner.

"The Most Disparaged Branch: The Role of Congress in the Twenty-First Century"

This symposium issue of the Boston University Law Review looks like a must-read for Legislation folks.

Prediction: President Obama Will Nominate Judge Diane Wood of Seventh Circuit

With all the talk about whom the President should nominate, there's been less focus on whom the president will nominate. You can look at the Intrade predictions market here, which reflects Judge Sotomayor in the lead, with SG Kagan, and Judges Wood and Wardlaw, behind. (My personal choice, Pam Karlan is trading prettly low, and Kathleen Sullivan, who also would make an excellent choice for the Court, barely registering---it is kind of strange how her name has dropped off so quickly.)

Though the field is still open, and anything can happen, here are my top five reasons why I believe Judge Wood, rather than Judge Sotomayor or the other names that have been mentioned, is more likely to get the nomination for the first open seat.

1. The President is coming into this process with the likelihood of having another 1-2 or more appointments to the Court. So he does not have to find a single candidate who can satisfy all the things he is looking for. (Recall how Justice Breyer looked like he was going to get the nod from Clinton, only to see the choice go to Justice Ginsburg first, before Justice Breyer got the next nomination). So the pressure to choose an Hispanic nominee, for example, might be put off until the next time. I take it that the greatest pressure (and I'd say, the dire need) is for the President to choose a woman now, and so that becomes a constraint within which he will work.

2. The President has gone to his trusted circle (and those who can be vouched for from his trusted circle) whenever he can for sensitive positions. This explains Valerie Jarrett, Cass Sunstein, and others. When he's gone outside his circle, as with the choice of Vice President Biden, there's greater room for tension and mismatch. Judge Wood comes from the same University of Chicago circles, and she can be vouched for. She would not be a "stealth" Justice, as Justice Souter was.

3. Nominating Judge Woods gets a progressive judge on the Court using the Roberts/Alito playbook. If you choose someone who has a truly excellent reputation as a judge, it becomes very hard for opponents of that person to block the nomination on ideological grounds. If the real goal is getting a progressive leader on the Court, this is the easiest path.

4. The other nominees present harder paths to nomination. There have been attacks on Judge Sotomayor's temperament and ability to work with other judges. My colleague Rob Kar has responded to these attacks, and vouches for the judge's intelligence and temperament. But it will be a battle, and one that would be fought over whether the judge, whom opponents will say would have been chosen for her ethnicity, is an outstanding judge. (See Eric Posner's evaluation of Judge Sotomayor's appellate record using Gulati and Choi's framework, concluding the judge is about average, or slightly below average, on a number of measures.) President Obama could have this fight, and probably win it, but the question is whether he wants to spend his political capital on this when he is fighting over health care, the economy, the environment, and so many other things in Congress right now. A Roberts-like hearing moves quickly, and gets the country back to other business.

5. The president is likely to resist the temptation to go bold. Going bold is choosing someone like Pam Karlan, who is brilliant and outspoken. Pam hasn't trimmed her sails in what she's said, and there would be plenty of those YouTube moments to be dissected by 24-hour cable news and a Senate Judiciary minority led by Senator Sessions. As with Sotomayor, Karlan likely could be confirmed to the Court with a big push by the President. This would be the nomination progressives would love. But my thinking is the president wants to preserve some of his capital for everything else, and with Wood he gets an excellent choice at very little cost.

Or I could be totally wrong on everything.

Quote of the Day

"Would I like to be on the Supreme Court? You bet I would...But not enough to have trimmed my sails for half a lifetime."
---Pam Karlan, speaking at Stanford Law School graduation.

"Report: One-Fourth of Overseas Votes Go Uncounted"

AP offers this report about a CRS study being released in connection with this hearing before the Senate Rules Committee.

Adam Cohen on NAMUDNO

See this NY Times "Editorial Observer" column. For a different view, see Mary Sanchez's column in the KC Star.

Bachmann on ACORN

The controversial Rep. Michele Bachmann has written this Wash. Times oped criticizing ACORN.

Covington's Political Law Update Now Available

See here.

Thad Kousser on the Upcoming California Election

See this LA Times oped.

More Supposed Concern About Voter Fraud in Indiana

See the Indiana governor's veto of an election reform bill passed with some bipartisan support.

Check Out the New "Double X" Website

If you are a fan (as I am) of the XX Factor blog on Slate, you are going to want to check out the spinoff site, Double X. Here's a NYT story on the launch. This should make for some very interesting reading.

"Spring Awakening: The Case for Corporate Disclosure of Political Contributions"

Andrew Boyle and Laura MacCleery have written this post on The Hill's Congress Blog.

"Coleman Wants Campaign To Pay Cost Of Responding To TPM Story -- Even Though It Never Responded"

TPMMuckraker reports.

"Universal Voter Registration for the State of New York"

YesWeCanLI has this post at Daily Kos.

All Federal Election Law in One Title of U.S. Code?

Toby Dorsey writes that there is a draft bill in Congress to enact into positive law a proposed new title 52, United States Code, which would contain various federal voting and elections laws.

The draft bill was prepared by the Office of the Law Revision Counsel of the House of Representatives. According to that office's web site, the bill has been submitted to the Judiciary Committee in February 2009 but has not yet been introduced. Toby explains that as is customary with codification bills prepared by that office, it proposes no substantive changes.

Franken Brief Roundup

Star Tribune

St. Paul Pioneer-Press

MPR

Eric Black

My initial analysis is here. That post incorrectly noted that Coleman's reply brief was due Thursday. It is due Friday.

Economists Don't Believe American Democracy is Working

See this article in Econ. Journal Watch.

"Election Fund Is Keeping Government Honest"

The Hartford Courant offers this editorial.

Initial Thoughts on Franken's Minnesota Supreme Court Brief

I have now had a chance to give a quick first read to Al Franken's Respondent's Brief in the Coleman-Franken U.S. Senate contest. (The brief is available here). My initial thoughts on Coleman's opening brief are here. Coleman's reply brief is due Friday [corrected], and oral argument before the Minnesota Supreme Court in June 1. Here are my thoughts on Franken's brief.

1. This is an extremely well done brief. When learning to be an appellate laywer, I recall hearing from Ellis Horvitz, dean of California appellate lawyers, that sometimes the most appropriate tone on response to an argument is a "stifled yawn." That's how this brief comes across. It takes an incredible amount of restraint (and confidence) not to respond to every argument and sub-argument of an opponent, and to treat potentially major issues with the back of one's hand. That's how this brief deals with Coleman's argument. It devotes only 5 pages (of 44) to refuting Coleman's equal protection argument, which is certainly Coleman's strongest appellate argument. The Franken brief (at least on my first read through) does not even tackle some of Coleman's weaker arguments, such as that for proportional reduction. The message that comes across is: Coleman's arguments are mostly waived; those that are not waived are inconsistent, and even if they were accepted they do not demonstrate the right to the remedy of a new election.

2. There are not too many surprises in the way that Franken's team argues the Bush v. Gore issue; the arguments go as I anticipated. I would have expected a bit more attention paid to the details in the record of the variations in local policy on dealing with absentee ballots. Still, having not heard all the evidence and having not reviewed the record, perhaps this was a wise choice. Franken does not claim that Bush v. Gore has no precedential value. But the brief seeks to limit the holding as a matter of both fact and law.

3. The brief states that the due process argument is waived because it was not properly raised in the trial court (I don't know that this is smart strategy---getting it adjudicated here might save a further adjudication in a later federal court action). On the merits they contend, as I have argued, that it will be Franken, rather than Coleman, who has a potential due process argument if the state Supreme Court changes the standards for counting absentee ballots later in the game.

4. At the end of the brief, Franken asks the court to state that its decision ends the state election process, thereby giving the winner at the state Supreme Court the immediate right to an election certificate. I've said that I think that's a strong argument as to a follow-on separate federal lawsuit, but it is less clear as to whether a petition for cert. to the U.S. Supreme Court would be considered part of the state process that could delay the issuance of a certificate. It could well be that if the state supreme court sides with Franken, it will order the issuance of a certificate after a short time, enough time for Coleman to seek a stay from the U.S. Supreme Court.

5. There's still so much irony here in the position of the parties. We already had the Republican candidate shouting out the mantra of "count every vote," and arguing that substantial compliance rather than strict compliance with election law rules as good enough. Here, we have the Democratic candidate's lawyers arguing for a narrow reading of the equal protection holding in Bush v. Gore (I thought it was particularly unpersuasive to argue that absentee voters don't get the same equal protection rights (p. 17: "Appellants challenge its treatment of absentee ballots--which, prior to acceptance, are entitled to significantly less constitutional scrutiny"). There's also a ringing endorsement of the Supreme Court's decision in the Crawford voter identification case, particularly the point that the state can act to prevent voter fraud even in the absence of any good evidence that it exists.

6. I still think Coleman has an uphill battle here. It would not surprise me if Franken won in an unanimous decision at the state Supreme Court. Even if he does, Michael Steele says "Hell No" on giving up. We'll see.

Franken Brief Due Today

The document should be posted here later today. I will provide analysis after I see it and have time to read it.

"Election Officials Share Mixed Emotions on Voting Rights Act"

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

"Voter ID Could Advance Today"

The latest from Texas.

"The real voter-registration fraud was on ACORN"

Brian O'Neill has written this column for the Pittsburgh Post-Gazette.

"N.J.'s outgoing election law chief leaves legacy as nonpartisan"

Bob Braun has this column in the Star-Ledger.

"FEC Shakeup Long Overdue"

Eliza's latest.

Anti-ACORN Legislation Makes It to the Floor of the U.S. House

See here.

"Sunlight on NASED ITA Reports"

Joe Hall blogs about something important that I don't understand in the slightest.

New Link to Info about Wallison-Gora Book

See here.

"Decades of Campaign Finance Law Under Siege"

Tara Malloy and Gerry Hebert have written this extensive piece.

"Florida Republicans Withdraw Plan to Revise Voting Rules"

The NY Times offers this report.

Another Important Statement of Reasons from the Three Republican FEC Commissioners

This one on the American Leadership Project. Among other things, this is important for understanding these Commissioners' views of the "major purpose test" for political committee status.

"Court Allows Steele Into RNC Lawsuit Challenging FEC Soft-Money Restrictions"

BNA reports.

"Supreme Court Got It Wrong: Contribution Limits Don't Hamper Electoral Competition"

Ciara Torres-Spelliscy offers this blog post about a new report, "Electoral Competition and Low Contribution Limits," which she has co-authored with Kahlil Williams and Dr. Thomas Stratmann.

Off to DC

I'll be speaking at this Brennan Center event Friday. Regular blogging to resume Monday.

Hebert Takes on von Spakovsky on Bailout and the VRA

See here.

Rules Committee Hearing on Military and Overseas Voters

I've just received the following notice: "There will be a meeting of the Committee on Rules and Administration on Wednesday, May 13, 2009, at 10:00 a.m. in SR-301, Russell Senate Office Building, to hear testimony on Problems for Military and Overseas Voters: Why Many Soldiers and Their Families Can't Vote."

Election Reform Still on Schwarzenegger Agenda Post-Governorship

That's according to this NY Times profile. I discuss the governor, direct democracy, and election reform in this forthcoming review essay in the California Law Review.

"A 'Post-Racial' Assault on Voting Rights"

Adam Serwer has written this article on NAMUDNO for the American Prospect.

In the Election Law Mailbag

Reforming the Presidential Nomination Process (Steven S. Smith and Melanie J. Springer, eds., Brookings Institution Press 2009)

Todd Donovan, Caroline J. Tolbert, and Daniel A. Smith, Political Engagement, Mobilization, and Direct Democracy, Public Opinion Quarterly 2009 73(1):98-118.

Peter J. Wallison and Joel M. Gora, Better Parties, Better Government: A Realistic Program for Campaign Finance Reform (AEI 2009)

Los Angeles County Registrar-Recorder, Post-Election Report: 2008 General Election

"Deep-pocketed donors want campaign finance reform"

CNN has this blog post.

A Revised Version of "The Democracy Canon"

I've posted an updated draft on SSRN. My plan is to update it again to take into account developments in the Coleman-Franken case (which has a very juicy Democracy Canon issue in it). The article will be out in the Stanford Law Review in December, and I assume (perhaps naively) that the Coleman-Franken dispute will be over before then.

More Hebert on NAMUDNO

See here. I hope we get more Hebert on von Spakovsky soon.

The FEC's Controversial Press Release Policy....

is on the agenda.

"Washington, D.C.: Report - Modernizing Our Voter Registration System Could Eliminate Millions in Wasteful Spending"

U.S. PIRG has issued this press release about this new study. The press release opens: "A new U.S. PIRG Education Fund study estimated that over $33,467,910.00 of public money from 100 counties was spent on simple registration implementation and error-correction issues in 2008."

Heather Gerken is Willing to Send Justice Kennedy (or Presumably His Clerks) Gaddie and Bullock's Page Proofs

See this post at Balkinization.

Actually, I have been involved in a few instances in which forthcoming works were sent to all the Supreme Court justices for their information. For example, while Eldred v. Ashcroft was pending, the Loyola of Los Angeles Law Review put together a symposium on the case. Page proofs went to the Justices, and I believe at least one of those articles was cited (and presumably more of them read, at least by the clerk in each chambers assigned to the case).

"Awaiting, with Trepidation, High Court's Decision on Voting Rights ActAwaiting, with Trepidation, High Court's Decision on Voting Rights Act"

Mark Posner ponders the NAMUDNO oral argument.

"Some PACs Run After Politicians Drop Out ; Neither Retirement Nor Electoral Defeat Stops Spending on Personal Items"

The Wall Street Journal offers this report.

"FEC Fails to Initiate Real-Time Reporting"

CQ Politics offers this report.

"Lawmakers divided over need for election reform"

MPR offers this report. It seems to me it will be hard to get Democrats to go along with changes to absentee ballot problems until after the Coleman-Franken issue is resolved.

"Criminal Charges Against ACORN Raise Concerns About Its Partnership With Census Bureau"

CNSNews offers this report, which quotes, among others, Ken Blackwell (I assume it is the same Ken Blackwell who was the Ohio Secretary of State, though he is not identified as such).

"Ga. follows Ariz. on citizenship proof for voters"

AP offers this report.

"An Unnatural Woman: The Secret Life of a Supreme Court Short-Lister"

A must read by Dahlia Lithwick and Hanna Rosin.

Has Gerry Hebert Been Successful in Obtaining Section 5 Bailouts for Va. Counties Because "Old Colleagues" in the Voting Section are Being "Flexible" for His Clients?

That's one of the controversial allegations made in this post at "The Corner" by Hans von Spakovsky. The whole post is a must-read for those interested in VRA-DOJ controversies.

Specter Wanted More from the Minnesota Courts Than Norm Coleman Asked For

Controversy has swirled over a the following comment Sen. Specter made for a NYT Magazine interview: "There's still time for the Minnesota courts to do justice and declare Norm Coleman the winner." Though the latest news is Sen. Specter's walkback of the comments, I found a different aspect of the controversy more interesting. Coleman is not asking to be declared the winner: he wants a counting of more ballots (with an uncertain result) or a new election. So the Specter comment was made by someone sympathetic with Coleman's situation but with little knowledge of the actual state of the litigation.

"SCHUMER URGES OBAMA ADMINISTRATION TO MAKE IT EASIER FOR VETERANS TO REGISTER TO VOTE"

See this press release. I have posted the letter to President Obama here.

Foley on the Complicated Nature of the State Law Claims in Coleman v. Franken

However complicated you think the issues are, they are much more complicated.

Justice Souter, Judge Sotomayor, and Voting Rights

Heather Gerken celebrates Justice Souter's views on race and the Voting Rights Act.

Jamal Greene is impressed with Judge Sotomayor's dissenting opinion in a VRA felon disenfranchisement case.

"With Specter Switch, Minnesota Senate Race Could Drag On for Months -- or Longer"

FOXNews offers this report. TPM comments.

Pa Supreme Court on State Constitutional Grounds Strikes Down Ban on Contributions from Those in Gaming Industry

See the majority opinion and the dissent. Courts are split on the constitutionality of such provisions under the First Amendment. See Lowenstein, Hasen, & Tokaji, at 850.

Bauer Keynote on Lobbying as a Problem and a Profession

See here.

CATO Video on Citizens United Case

See here.

"Groups push for first gay Supreme Court justice"

Politico offers this report. Shouldn't the headline refer to the first openly gay Supreme Court justice?

"Voting Rights Milestone"

The WSJ offers this editorial on NAMUDNO.

"Campaigners fined for illegal '08 votes"

The Columbus Dispatch offers this report (via Juan Non-Volokh).

Roll Call on the Reform Community Split Over FEC Nominee Sullivan

See here ($).

Bauer and Potter Agree on Something: The Democracy Index

They have co-authored this oped endorsing it. This is an important step, as I've predicted that Heather Gerken's proposal is likely to continue to attract more support from Democrats than Republicans. The next important step would be for a Republican Senator (I'm sure Trevor knows at least one) to come out in favor of the proposal.

"For GOP, It's Coleman or Bust"

Politico offers this report.

Bauer Argues Emily's List Case BeforeD.C. Circuit Panel Likely to Be Sympathetic to His Position

The draw: Circuit Judges Karen LeCraft Henderson, Brett Kavanaugh, and Janice Rogers Brown.

Stunz Makes the Case for Karlan

See here.

Holtzman Vogel Law and Policy Update

Here.

Another FEC Decision on 527s, Incorporating WRTL Standard to 100.22(b)--This Time 4-0

See here.

"U.S. suit challenges Lake Park elections"

The Palm Beach Post offers this report.

"Criminal charges filed against ACORN, two employees"

The Las Vegas Sun offers this report. I got a lot of pushback during the general election when I said that ACORN's business model was "broken." I continue to believe it, in light of the allegations made clear here:

Throughout 2008, ACORN employed canvassers to register people to vote in Nevada, the complaint said. ACORN paid the canvassers between $8 and $9 an hour, but made continued employment and continued compensation based on the canvasser registering 20 voters per shift. Those who failed to sign up 20 voters per shift were terminated, the complaint said.

From July 27 through Oct. 2 ACORN also provided additional compensation under a bonus program called "Blackjack" or "21+" that was based on the total number of voters a person registered. A canvasser who brought in 21 or more completed voter registration forms per shift would be paid a bonus of $5."

As TAPPED rightly points out, these were cases of registration fraud, not voting fraud.

And they say that what happens in Vegas stays in Vegas...

UPDATE: Project Vote has issued the following response:

Dear Colleagues,

As you may have heard, the Nevada politicians are at it again. Seven months after executing a carefully staged raid on the Las Vegas ACORN office-a publicity stunt purporting to gather evidence of "voter fraud" in Project Vote and ACORN's 2007-2008 voter registration drive- Nevada's attorney general and secretary of state today announced that they were filing a complaint against ACORN and two voter registration managers. Specifically, the complaint alleges that ACORN implemented a "corporate mandated quota system," and that bonuses were paid for exceeding this quota, in violation of a Nevada statute that prohibits payment based on the total number of registrations.

What the attorney general and secretary of state did NOT announce were any indictments against any of the 44 individual canvassers ACORN identified, as early as April 2008, as having submitted fraudulent applications to their supervisors. If Nevada officials were truly interested in protecting the integrity of the registration process they would cooperate with ACORN in seeking prosecution against these individuals. Instead, after seven months, the state of Nevada has chosen to divert attention from their failure and attempt to justify their attacks against ACORN with this ridiculous complaint.

ACORN, in common with every other business or professional organization, needs to establish standards for performance and a reasonable basis for evaluating its employees. For canvassers, who are paid by the hour to assist members of the public in completing voter registration applications, these expectations are based on the only measurement that makes sense: the number of complete and accurate voter registration applications a canvasser collects per shift. Based on years of experience conducting community-based voter registration drives, ACORN has established 20 applications per four-hour shift as a reasonable performance standard.

This performance standard does not represent a "quota," or payment per registration, but simply a baseline for job performance. And, as the complaint itself makes clear, failing to meet this standard does not result in automatic termination. ACORN supervisors are trained to evaluate canvassers on a case-by-case basis, and are given wide latitude in determining the appropriate course of action for under-performing canvassers, ranging from re-training or reassignment to disciplinary action or dismissal.

Moreover, the statute invoked in the complaint does not even address such job performance standards, nor does it address the situation in the Nevada office, in which unauthorized but moderate bonuses (in the amount of five-dollars per shift) were awarded in September to canvassers who exceeded expectations. In fact, the poorly written statute merely states that it is illegal to pay anyone to register voters based on the total number of voters registered. ACORN canvassers are paid and evaluated by the hour. The absurd legal interpretation under which the complaint has been brought suggests that it is illegal for a voter registration drive to set ANY job performance standards for hourly employees, or to evaluate employees and hold them accountable. In effect, their interpretation of the law would make conducting a paid voter registration drive impossible.

Few states need active and effective voter registration drives more than Nevada, which rates 50th out of 51 states (including the District of Columbia) in voter registration rates. Over 900,000 of 1.6 million eligible Nevadans remain unregistered, including 106,000 of the state's 199,000 eligible low-income residents. ACORN and Project Vote's registration drive, by election officials' own conservative estimate, resulted in over 23,000 new Nevada voters casting a ballot in the 2008 election.

Project Vote and ACORN are proud of our work helping Americans from historically underrepresented population register to vote. We plan to vigorously defend our work against these specious charges, and other efforts to hinder or stop community-based voter registration programs. We wish only that these Nevada politicians had spent the past seven months working with us to investigate real instances of criminal activity, instead of attempting to justify their continued attacks against ACORN with this absurd and diversionary complaint.

Regards,

Michael Slater

Executive Director

"Obama FEC Choice Draws Mixed Reviews"

Dan Eggen has written this post for WaPo's "44" blog. I learned this morning after this post that Dan is now on this beat and that he has been working on FEC stories.

Public Campaign Gives Strong Endorsement to FEC Nominee Sullivan

See here.

It's Sessions as Ranking Judiciary Committee Member, Through 2010

So reports The Hill and Politico.

I recall being questioned by Sen. Sessions on the constitutionality of the renewed Section 5. He was clearly one of the most skeptical of Section 5's renewal, but he did not sign on to the controversial remarks of Senators Coburn and Cornyn. (More on the controversy surrounding the VRA Senate report here and here.)

The FEC, the Times and the Post

There are some major, troubling things happening at the FEC. If you follow this blog, you know that there have been a number of key 3-3 splits along party lines in recent months, on some important, high profile complaints. As things stand now, the FEC appears to be at the cusp of opening up the floodgates to 527 and 501(c) activity, mostly unregulated. President Obama dropped a controversial nomination to the FEC late Friday afternoon, and loud protests from the campaign finance reform community have begun.

Certainly these developments will continue to get covered by the specialty press: Roll Call, The Hill, and Politico. Likely Eliza will write about them for National Journal, and Peter Overby will be able to get a story picked up by NPR.

But where are the Times and Post? Glen Justice, and then Michael Luo, covered these issues for the Times. But since the election, there's been very little coverage, beyond the very good story picked up online only by The Caucus blog by Bernie Becker. The situation is worse at the Post, where Matthew Mosk apparently has been pulled on to other matters, with no one yet appearing on the FEC beat.

I know that newspapers are hurting, and perhaps there are higher priorities. But I'll bet that these newspapers are more likely to devote resources to the salacious but less important John Edwards FEC story (which got an AP story in today's NY Times) than to the important policy issues going on now at the FEC. Without major attention from the national press, the push to improve the FEC will fail, and meaningful campaign finance reform will fail along with it.

"Franken's in limbo as the weeks grind on"

The Star Tribune offers this report.

"A Bad Time To Cut Voting Rights Protections"

Eliza on NAMUDNO.

When Will the May 19 Special Election in California Be Over? Thanks to Early Voters, Perhaps Well Before Election Day

See this LA Times report.

"Doubting Discrimination: The troubling case of conservative skepticism over voting rights violations"

The Washington Post offers this editorial.

"Feds Launch Investigation into Edwards Campaign"

Political Wire offers this report. I recall getting a lot of press calls about this question when the affair became public, then heard nothing until now.

President Obama Admits Voting Rights Decision by Justice O'Connor Incomprehensible

See the end of this article.

Vote by Mail and Postal Service Increases

The Oregon experience.

"Why Tuesday?" Remembers Honorary Co-Chair Jack Kemp

See here.

Hebert Statement on FEC Nominee Sullivan

I received this statement via email. It does not yet appear on the CLC's website:

President Obama’s FEC Pick is Not the "Change We Need": Statement of J. Gerald Hebert, Campaign Legal Center Executive Director


The nomination of John Sullivan by President Obama to a seat on the FEC is cause for concern. Mr. John Sullivan’s only known statements on campaign finance issues have been made to the FEC on behalf of the union that employs him. While lawyers are of course obligated to represent their clients, the gusto with which Mr. Sullivan has bashed important elements of McCain-Feingold and repeatedly taken radical deregulatory positions does not inspire confidence that he will have different views if confirmed to the Commission. More important is the question of what Mr. Sullivan’s nomination says about President Obama’s promises to change Washington and reform the FEC: certainly this nomination is a strange way to initiate such change. If the White House is serious about improving the FEC, it will need to fill the two other vacancies on the Commission with people who will shake it up, not fit right in to the status quo.

The Campaign Legal Center has long advocated the strengthening of campaign finance law enforcement through replacement of Commissioners who all-too-often express hostility toward the very laws they’re charged with enforcing with Commissioners who, instead, believe in the agency’s mission of enforcing the money-in-politics regulations that Congress has enacted. And lacking faith that any administration would truly bring the change that is needed, we have advocated a total restructuring of the agency by Congress.

But far from endorsing enforcement of Congress' campaign finance regulations, President Obama's nominee for the Commission, labor union lawyer John Sullivan, has over the years encouraged radical deregulation of campaign finance by the FEC. The fact that he has also worked for reform of the voting process is of little help, since that is the province of the Election Administration Commission, not the FEC.

In October 2007, for example, Sullivan filed comments (http://www.fec.gov/pdf/nprm/electioneering_comm/2007/afl-cio_afscme_nea_seiu_ecomment1.pdf) in the FEC's rulemaking proceeding to modify its "electioneering communication" regulations in the wake of the Supreme Court decision in Wisconsin Right to Life (WRTL)-urging the Commission to go far beyond the Court’s ruling by ceasing to enforce "electioneering communication" disclosure requirements not even challenged, let alone invalidated, in WRTL. Sullivan's urging of deregulation in the post-WRTL rulemaking was so radical that not even the most visible, well-known opponents of campaign finance restrictions supported it. For example, while the adamantly deregulationist Center for Competitive Politics urged the Commission to wait for a court decision actually invalidating the disclosure requirements before ceasing to enforce them (http://www.fec.gov/pdf/nprm/electioneering_comm/2007/center_for_competitive_politics_eccomment8.pdf), Sullivan urged the Commission to cease enforcement of the disclosure requirements enacted by Congress and upheld by eight members of the Supreme Court in McConnell v. FEC. Fortunately, the Commission rejected Sullivan's advice and properly confined its rulemaking to the issues actually litigated in WRTL.

Sullivan's deregulatory approach to campaign finance law was also on display in 2006, when Sullivan filed comments (http://www.fec.gov/pdf/nprm/coord_commun/comm25.pdf) in an FEC rulemaking on “coordinated communications.” The Commission was conducting the rulemaking as a result of the federal Circuit Court of Appeals decision in Shays v. FEC, in which the court criticized the Commission because it "offered no persuasive justification" for the time-frame utilized in its coordination rule and “the weak restraints [i.e., an ‘express advocacy’ test] applying outside of it.” The Circuit Court reasoned that the Supreme Court in McConnell had described the "express advocacy" test as "functionally meaningless” because it is so easily evaded and that, 'by employing a ‘functionally meaningless’ standard ..., the FEC has in effect allowed a coordinated communication free-for-all for much of each election cycle." Yet Sullivan, in his comments to the Commission, expressed "serious doubts about the validity of any [coordination] content standard that includes more than express advocacy and electioneering communications." Unfortunately, the Commission heeded Sullivan's advice and re-promulgated a coordination rule with the same flaw identified by the court-the rule relied on the "functionally meaningless" and easily evaded “express advocacy” standard. Consequently, the Commission was sued yet again-and yet again, the D.C. Circuit Court of Appeals struck down the Commission’s rule because it relied on the "express advocacy" standard. The court used even harsher language in its critique of the coordination rule second time round, noting that the rule "allows candidates to evade-almost completely-BCRA’s restrictions on the use of soft money." The court further explained: "Thus, the FEC's rule not only makes it eminently possible for soft money to be 'used in connection with federal elections,' but it also provides a clear roadmap for doing so, directly frustrating BCRA's purpose." (internal citation omitted) Alarmingly, the Commission has been under federal court order to rewrite this invalidated rule since 2007 and has not yet even initiated the rulemaking. So President Obama’s nominee to the Commission, if confirmed by the Senate, will play a critical role in rewriting the coordination rule for the third time since the 2002 passage of the McCain-Feingold law.

If John Sullivan's past advice to the FEC is any indication of the manner in which he would perform the duties of an FEC Commissioner then his nomination to the Commission is a far cry from the "change" promised by President Obama on the campaign trail and in the months since being elected. Quite frankly, we hoped for far more. Mr. Sullivan now has to show that the radical positions he advocated were those of the union that employs him, and that he’ll be a far different Commissioner than he has been an advocate before Commission. And the President has yet to show that the change he advocated, including reform of the FEC, will become a reality in this Administration.

Greenhouse on Persily on Souter on NAMUDNO

I noted the other day that Justice Souter's final act on the Court might be dissent in NAMUDNO. Linda Greenhouse quotes Nate Persily to similar effect today, based upon Nate's observations at oral argument.

Sessions as Judiciary Committee Ranking Republican, But Only Until 2010?

See this AP report. See also Paul Kane's Capitol Briefing.

"From the Good Folks Who Brought You Rod Blagojevich"

Collin Levy has written this column on campaign finance reform in Illinois for the Wall Street Journal.

"Mixed reviews for W.H.'s surprise FEC pick"

Politico offers this report.

"Law Still Essential to Voters"

Cynthia Tucker offers this Atlanta Journal-Constitution column on NAMUDNO.

The Irrepressible Pam Karlan

Don't miss these comments about a potential Supreme Court nominee from Pam Karlan.

Labor Lawyer John J. Sullivan Nominated for Weintraub Seat on FEC

From a White House press release (that does not yet appear to be online):

THE WHITE HOUSE

Office of the Press Secretary


FOR IMMEDIATE RELEASE

May 1, 2009

President Obama Announces More Key Administration Posts

WASHINGTON, DC -- Today, President Barack Obama announced his intent to nominate the following individuals for key administration posts: Kathy Greenlee, Assistant Secretary, Administration on Aging, Department of Health and Human Services; Wilma A. Lewis, Assistant Secretary for Land and Mineral Management, Department of the Interior; and John J. Sullivan, Commissioner, Federal Election Commission.

President Obama said, "The American people will be well-served by these skilled and dedicated individuals. I am confident that they will be assets in my administration as we work to bring about real change in our country, and I am grateful for their decision to serve and their commitment to my reform agenda."

President Obama announced his intent to nominate the following individuals today:...

John J. Sullivan, Nominee for Commissioner, Federal Election Commission

John J. Sullivan is a leader in the labor community and has been a staunch advocate for election reform and voter protection. Since 1997, Sullivan has served as the Associate General Counsel at the Service Employees International Union (SEIU), where he advises one of the largest independent political programs in the country. From 1994 to 1997, Sullivan worked as Associate General Counsel for the International Brotherhood of Teamsters (IBT), where he was responsible for union governance issues and the administration of the election provisions of the federal consent decree with the Teamsters Union.

Prior to that, Sullivan worked as an associate and partner at the law firm of Guerrieri, Edmond & James, where he was involved in the firm's representation of railway and airline unions in federal court litigation, bankruptcy proceedings and before federal administrative agencies. From 1990 to 1992, Sullivan worked in the Office of the Election Officer at the IBT as the election protest coordinator and counsel to the court-appointed Election Officer. Sullivan has also represented the American Federation of State, County and Municipal Employees (AFSCME) in public employee organizing campaigns. Sullivan has extensive additional election experience. He contributed to the Florida recount efforts in the 2000 presidential election; helped coordinate union voter protection activities in the 2004 general election; was a member of the team that directed the successful recount in the 2004 Washington gubernatorial election; worked as an observer for elections in Ukraine; served on Maryland Governor Martin O'Malley's Transition Team on Election Reform; served as the Vice President of the Montgomery County Board of Elections; and volunteered for voter protection efforts in Ohio, Indiana, and Pennsylvania for the 2008 presidential primaries. Sullivan received his B.A., summa cum laude, from the University of Massachusetts-Boston and graduated with a J.D. from Northeastern University School of Law.

Hearing Monday in Conduit Contributions Case

The National Law Journal offers Lawyer for Katrina Victims Stands Pat in Political Contributions Case.

"Topic A: Obama's First Supreme Court Pick"

I've just weighed in to this opinion roundup at the Washington Post website. So far, Benjamin Wittes and Ed Whelan have weighed in as well, and more opinions are expected to be posted. The series should be in print on Sunday.

"Mayday, Mayday at the Federal Election Commission: A Report on the Unprecedented Campaign by the Republican FEC Commissioners to Shut Down Enforcement of the Campaign Finance Laws"

Don't miss Fred Wertheimer's litany of complaints against recent FEC non-enforcement.

"RNC Wants Out of Consent Decree Prohibiting Them from Voter Caging"

The RNC, too, wants to bail out.

Dorf on the Senate Judiciary Committee Rules

Don't miss this post by Mike Dorf about the internal Judiciary Committee rule that requires at least one vote from the minority party to advance a nominee out of committee.

Mike also obliquely suggests Pam Karlan for the Supreme Court, a suggestion I endorsed wholeheartedly here.

Election Law Journal 8:2 Now Available; Preview of ELJ 8:3

You can find the Table of contents for ELJ 8:2 here and reprinted below. Look for ELJ 8:3 in July, featuring Michael Franz on FEC enforcement, Tamara Small on campaign finance regulation in the Internet era in Canada, and our third annual book review issue, featuring reviews by Richard Briffault, Bruce Cain, Richard Engstrom, Stephen Huefner, Michael MacDonald, Lorraine Minnite, Susan Clark Muntean, Ray Martinez III, Dan Schnur, Charles Stewart, Dan Tokaji, and Kieran Williams.

The "Party Line" editorial by Dan Lowenstein and me at the beginning of issue 8:2 concludes as follows: "Finally, on a personal note, we express our gratitude to a friend who has recently left the journal. For several years we as editors and you as readers have benefited greatly from the service to the Election Law Journal of Sam Hirsch, who has been our Associate Editor. Sam took charge of the 'back of the book,' bringing order to what we believe has become a useful part of ELJ. He has also been a source of invaluable advice on a wide range of matters. Recently he was named Deputy Associate Attorney General at the United States Department of Justice. ELJ's loss will be the Justice Department's gain. We know we speak for all of our readers in congratulating Sam and wishing him well."

Here is the Table of Contents of 8:2:

EDITORIAL
The Party Line
Daniel H. Lowenstein and Richard L. Hasen

IN MEMORIAM
Charles H. Backstrom, 1926-2008
Leonard Robins and John L. Sullivan

ORIGINAL ARTICLES
Modeling Problems in the Voter ID-Voter Turnout Debate
Robert S. Erikson and Lorraine C. Minnite

What Is an Unconstitutional "Other Tax" on Voting? Construing the Twenty-Fourth Amendment
Allison R. Hayward

The People's Choice: The Prisoner Franchise and the Constitutional Protection of Voting Rights in Australia
Graeme Orr and George Williams

BOOK REVIEWS
Judging the Law of Democracy
Yasmin Dawood, reviewing Christopher Manfredi and Mark Rush, Judging Democracy

Where Angels Fear to Tread
Michael Maley, reviewing Frederic Charles Schaffer, The Hidden Costs of Clean Election Reform

Running on the Constitution
Adam Winkler, reviewing Andrew E. Busch, The Constitution on the Campaign Trail: The Surprising Political Career of America's Founding Document

RECENT CASES AND MATERIALS
Summary
Coleman v. Ritchie, 758 N.W.2d 306 (Minn. 2008)

"The Voting Rights Act And Its Wrongs"

Stuart Taylor will have this column in next week's National Journal. Near the end, he writes: "Is there a way to split this baby? One might be to strike down Section 5's most arbitrary provisions while leaving most of it in force, at least long enough to give Congress a chance to clean it up." I have no idea what Taylor is thinking in terms of separating Section 5's "most arbitrary provisions" from the rest of it.

"Coleman's appeal asks for more counting"

The Star Tribune offers this report. My initial thoughts on the Coleman brief (which may be buried on my site given an extra heavy day of blogging yesterday) are here.

"Reform Groups Call for Change at FEC, Citing Deadlocked Votes, Case Dismissals"

BNA offers this important report ($).