"Congress Set to Take Aim at Judicial Recusals"

The National Law Journal offers this report on consideration of congressional imposition of recusal standards for federal judges.

One interesting question (raised by David Skover at the recent judicial independence conference I attended at Seattle University) is whether Congress would also have the power (under its 14th amendment enforcement powers) to create state judicial recusal rules to enforce the due process rights the Supreme Court recognized in the recent Caperton case.

"Privacy Looms Over Gay Rights Vote"

The NY Times on controversy over releasing the identity of those who signed the R71 referendum petitions in Washington State.

Two from CQ Politics

Check out How To Vote From Six Feet Under and Jon Corzine and the Millionaire's Amendment.

"Setback for Group Fighting Gay Marriage in Maine"

The NY Times offers this report, which begins: "The Maine attorney general is prodding a national group that fights same-sex marriage to reveal its donors by Election Day, after a federal judge on Wednesday denied the group's request for a restraining order."

"PRESIDENT OBAMA SIGNS SCHUMER BILL TO EASE VOTING PROCESS FOR MILITARY, OVERSEAS VOTERS"

See this press release.

Ed Still has posted the Legislation.

It is also the subject of Doug Chapin's Director's Note in the 10/29 Electionline.org Weekly, which should be posted at this link soon. [UPDATE: Their website is down so I have posted the report here.

"Demos Applauds Senator Feingold and Representative Ellison for Introducing Same Day Voter Registration Bill"

See this press release.

If the New Jersey Governor's Race Results are Razor Thin....

keep your eye on this issue. Thanks to Jonathan Adler for the link.

"GOODBYE SOFT MONEY, HELLO GRASSROOTS: HOW CAMPAIGN FINANCE REFORM RESTRUCTURED CAMPAIGNS AND THE POLITICAL WORLD"

Laura MacLeery has written this article for the Catholic University Law Review.

"Trust, Antitrust and Your Vote"

The NY Times offers this editorial.

Campaign Finance Dispute in Crist-Rubio Race?

See this post at Redstate.

"State high court says campaign donations can't force recusals"

The Milwaukee Journal Sentinel offers this report on a 4-3 decision of the Wisconsin Supreme Court. This is one of the first major post-Caperton recusal decisions. More here.

UPDATE: More audio, video and other materials here and here.

"White House rebuts allegation that big donors get special perks"

The Washington Post offers this report.

"FEC Puts Obama in a Bind"

The Politico offers this interesting report on the EMILY's List appeal decision. My most recent thoughts on this topic are here.

"Republican-led Harris County Voter Registration Office Admits to Voter Suppression Tactics"

Burnt Orange Report offers this report.

Watch the Chief Justice George Speech on California and the Initiative Process

You can watch it here.

"Federal judge rejects anti-gay rights group; PAC has to abide by campaign finance laws"

The Seattle Post-Intelligencer offers this report. (H/T Ballot Access News).

"Law Versus Ideology: The Supreme Court and the Use of Legislative History"

David Law and David Zaring have posted this draft on SSRN (forthcoming, William and Mary). Here is the abstract:

Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court's use of a particular interpretive technique -- namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed every opinion in every Supreme Court statutory interpretation case from 1953 through 2006 that involved a frequently interpreted federal statute. We also collected original data on the characteristics of each statute, including its age, length, complexity, obscurity, and the number of times that it had been amended. We then used logit regression analysis to evaluate the impact of these characteristics, as well as the ideological tilt of the justices and their opinions, on the likelihood that a justice would cite legislative history in a given opinion.

We find overall that the use of legislative history is driven by a combination of legal and ideological factors. On the whole, the legal variables have a significantly larger impact on the likelihood of legislative history usage than the ideological variables, but the impact of the ideological variables cannot be dismissed. Statutes that are longer or more complex increase the likelihood of legislative history usage, whereas frequent amendment of a statute decreases that likelihood. The age of the statute also matters, but its effect is neither linear nor monotonic: very new and very old statutes are more likely to elicit legislative history usage than statutes of intermediate age. Majority opinions are significantly more likely to cite legislative history than dissenting opinions, which are in turn more than twice as likely to cite legislative history as concurring opinions. The evidence also suggests that the use of legislative history by one justice prompts other justices to respond in kind with legislative history arguments of their own.

With respect to the impact of ideological factors, liberal justices are generally more likely than conservative justices to cite legislative history. We found no support, however, for the proposition that justices use legislative history instrumentally in order to reach their ideologically preferred outcomes: legislative history usage does not affect the likelihood that a justice will arrive at his or her preferred outcome. Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal justices who were inclined to cite legislative history have been replaced by conservative justices who are not inclined to do so.

"Campaign Crises: Detours on the Road to Congress"

Sam Garrett has written this book (Lynne Rienner Publishers).

"Supreme Court election crucial to redistricting, leaders say"

The Philadephia Inquirer offers this report.

Second Preliminary Injunction Request Denied in Palmer Voter ID Case

See here.

More on SSRN "Election Law and Voting Rights" Downloads

Following up on this post, I've heard from the folks at SSRN about my complaint that the "top ten" list is not representative of election law articles that appear on SSRN. They explain that one has to affirmatively choose "Election Law and Voting" rights from among the eJournals for distribution of the abstract. One can go back to older articles, but only those that are within the last year will be ranked for top ten purposes.

So this list could become useful going forward, if enough election law folks choose that eJournal in listing their articles.

"EXCLUSIVE: Democratic Donors Awarded with W.H. Perks"

It's the same as it ever was.

"California Would Lose Seats Under Census Change"

The NY Times offers this report. Californians should not worry. The proposal to count only citizens is neither politically viable nor constitutional.

"D.C. Vote Hopes Fade on the Hill"

The Politico offers this report.

"Amend and Pass HR 1719"

Mark Shelden blogs.

Colbert on R71 and Disclosure of Referendum Signatures

Watch here. [corrected link]

Excerpts and Links to Sens. Feingold and McCain on Citizens United

See here.

A Reason Reformers May Not Want to Urge the SG to Seek Review of the "EMILY's List" Case in the Supreme Court

EMILY's List is getting at lot of attention, especially given the FEC's decision not to appeal the case en banc.

Some reformers have been urging the SG to take the case to the Supreme Court, because if EMILY's List stands, it can have a lot of pernicious consequences, including the likely demise of the $5,000 contribution limit to independent expenditure committees.

But as this important BNA report notes ($), "Whether or not the EMILY's List case is appealed, issues involving financing of independent groups now are set to be considered by the full D.C. Circuit through the SpeechNow.org lawsuit," now set for argument in early January.

The best result for reformers would be the full D.C. Circuit affirming the constitutionality of the $5,000 contribution limit in the Speechnow.org case and the Supreme Court declining to hear the case. If the issue gets before the Supreme Court, it is likely the Court will strike down the limits. As I've repeatedly argued, the Supreme Court is the last place you want to be right now if you are trying to get progressive election law upheld.

"Editorial: Justice Department to Blacks: We Know Better"

The Washington Times offers this editorial, which begins: "Black voters across the land should be offended by the Obama Justice Department. In a decision last month, the department effectively told black voters in the town of Kinston, N.C., that they are too stupid to choose their own elected officials unless the candidates are identified by party label. In doing so, the department overruled Kinston's black voters themselves, who helped vote overwhelmingly to join most other North Carolina towns in holding nonpartisan local elections."

UPDATE: More here.

Is McCain-Feingold Making It Harder for President Obama to Raise Money for the Democratic Party than It Was for President Bush to Raise Money for the Republican Party?

That's the claim in this NY Times article and this WSJ article.

"Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech"

Elizabeth Pollman has posted this article at the Yale Law Journal Online (formerly, "The Pocket Part").

"Judge Denies Prop. 8 Backers Delay on Memos"

The SF Chronicle offers this very interesting report, which begins: "A federal judge said sponsors of California's ban on same-sex marriage may not delay in handing over campaign strategy documents to gay-rights groups that are looking for evidence of anti gay bias as they try to overturn the measure."

"Introduction: Developments in Election Law"

I have posted this draft on SSRN (forthcoming, Loyola of Los Angeles Law Review). Here is the abstract, with links to each article described included in the abstract:

This is a brief introduction to the Loyola of Los Angeles Law Review developments issue, which focuses in Volume 42 on election law topics. The first half of this introduction provides an update on the state of election law. It compares the state of election law as a discipline now to its state 10 years ago, when I wrote the introduction to the Loyola of Los Angeles Law Review symposium on "Election Law as Its Own Field of Study." The second half of this introduction describes the five new important student works contained in the developments issue. Sabina Jacobs, in The Voting Rights Act: What Is the Basis for the Section 5 Baseline?, examines a provocative statutory interpretation of the Voting Rights Act suggested by Chief Justice Roberts during oral argument in Riley v. Kennedy. Julien Kern, in As-Applied Constitutional Challenges, Class Actions, and Other Strategies: Potential Solutions to Challenging Voter Identification Laws After Crawford v. Marion County Election Board, examines the prospects for litigation in future voter identification cases. Molly McLucas, in The Need for Effective Recusal Standards for an Elected Judiciary, argues for specific recusal standards in light of the Supreme Court's recent opinion in Caperton v. Massey. Joshua Rosenberg, in Defining Population for One Person, One Vote, analyzes a fascinating question recently brought to the fore by Judge Guido Calabresi of the United States Court of Appeals for the Second Circuit in his opinion in Kalson v. Paterson. Finally, in Davis v. Federal Election Commission: Muddying the Clean Money Landscape, Emily C. Schuman examines a potential (intended or unintended) consequence for public financing plans of the Supreme Court's recent decision in Davis v. Federal Election Commission.

"Voting Reform Finds Bipartisanship"

Roll Call offers this report ($). It includes the following: "Sen. Charles Schumer (D-N.Y.), chairman of the Senate Rules and Administration Committee, is working on a bill to 'modernize' the voting system, said Fallon, the committee spokesman. But he declined to provide details on what the bill would include and how closely it would resemble Lofgren's."

This of course is exactly what we heard six months ago. I fear that no bill will come out of Congress before 2010, and after 2010 the dynamics of the next presidential race may make passing such a bill more difficult.

"One Person, One Dose"

Douglas Shenson has written this NY Times oped, which begins: "OUR ability to immunize large numbers of Americans quickly and effectively against the H1N1 virus may depend on an unlikely resource: our voting system. I do not mean our elected leaders, but our network of polling places. As we learned in last year's presidential election, American polling sites can process more than 130 million people in a single day."

Eliza Newlin Carney on a Post-Citizens United World

Here.

"Judge suspends ban on exit polling near NJ polls"

AP offers this report.

SSRN "Election Law and Voting Rights" Downloads: Needs Work

I received an email this morning from SSRN that one of my papers made the SSRN "top ten list" for "Election Law and Voting Rights." I've received such messages before about other lists (such as the "Legislation and Statutory Interpretation list") but not about any Election Law List. You can find the top ten list here.

It seems to me that the list is very underinclusive. For example, it lists my Beyond Incoherence article at the top download ever on this list (at 456 downloads), but my Critical Guide to Bush v. Gore Scholarship, not listed, has 955 downloads. And what I consider the most important election law article of the last decade, Rick Pildes's The Constitutionalization of Democratic Politics (290 downloads), is not on the list (nor is any work on the list by Pildes or many of the other leading scholars of election law). So this makes me wonder how the SSRN folks have decided which articles to include in this category. In any event, I would not rely upon the validity of this top ten list until more work has been done to make it include the large body of election law scholarship that has been posted on SSRN in the last decade.

"Section 5 Survives for Now"

This post at SCOTUSBlog discusses the upcoming consent decree in NAMUDNO.

"Gay marriage fight fuels debate over petitioners' rights"

The L.A. Times offers this front-page report.

"Analysis: EMILY's List case: To the Court, or not?"

Lyle Denniston has written this important analysis of the EMILY's List case at SCOTUSBlog. He has also prepared this extensive summary of the case, which law students especially may find helpful.

"The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law "

Dislear and Brudney have posted this draft on SSRN (forthcoming Duke Law Journal). Here is the abstract:

Debates about statutory interpretation - and especially about the role of the canons of construction and legislative history - are generally framed in one-size-fits-all terms. Yet federal judges - including most Supreme Court Justices - have not approached statutory interpretation from a methodologically uniform perspective. This Article presents the first in-depth examination of interpretive approaches taken in two distinct subject areas over an extended period of time. Professors Brudney and Ditslear compare how the Supreme Court has relied on legislative history and the canons of construction when construing tax statutes and workplace statutes from 1969 to 2008.

The authors conclude that the Justices tend to rely on legislative history for importantly different reasons in these two fields. The Court regularly invokes committee reports and floor statements in the workplace law area for the traditional role of identifying and elaborating on the legislative bargain that Congress reached. By contrast, the Justices often rely on the legislative history accompanying tax statutes to borrow expertise from key committee actors. The Court's use of tax legislative history for expertise borrowing purposes relates to the distinctive nature of how tax legislative history is produced, featuring regular cross-party and interbranch cooperation that is virtually unimaginable in the workplace law setting. Although most Justices have appreciated the special character of tax legislative history, Justice Scalia remains steadfast in his unwillingness to do so.

With respect to the use of canons, Brudney and Ditslear find that the Court makes comparatively heavier use of the whole act rule and related structural canons in its tax majorities. The authors suggest that the Justices may recognize the Internal Revenue Code to be more of a coherent and self-contained regulatory scheme than the series of workplace law statutes scattered across multiple titles of the U.S. Code. As for substantive canons, the Justices are much more likely to invoke tax-based judicial policy norms than to rely on canons grounded in the specifics of workplace law. The authors contend that the Court's use of these tax law canons should be viewed as a derivative form of expertise borrowing.

Finally, Brudney and Ditslear explore the special role played by Justice Blackmun in the tax area. They demonstrate how Blackmun's expertise in tax law and his attentiveness to its rich legislative history anchored the Court's performance for twenty-four years. Since Blackmun's retirement, the other Justices have been less interested in reviewing tax cases and far less willing to use legislative history when they choose to decide such cases.

The evidence that familiar interpretive resources play distinctive roles in the area of tax law contributes to a subtler and richer texture for statutory interpretation than is often captured in scholarly debates. At the same time, the authors' results also indicate that the Court since the late 1980s has exhibited greater uniformity in its reasoning in tax law and workplace law cases. Brudney and Ditslear wonder whether the philosophical arguments favoring a less flexible approach to statutory interpretation are beginning to trump a pragmatic orientation that is more sensitive to differences among particular subject matter areas of federal law.

"Nation's First Open Source Election Software Released"

Wired's "Threat Level" reports.

Want to Learn More About the California Citizen Redistricting Commission?

See the official website.

"US court reviews Ariz. registration requirement"

The Arizona Republic offers this report. You can listen to the audio of the Ninth Circuit argument here.

NAMUDNO,DOJ to Consent to Bailout

As I understand it, this consent decree will become final next month. "On remand, the Attorney General and the Defendant-Intervenors have agreed that the District has fulfilled the conditions required by Section 4(a) and is entitled to the requested declaratory judgment allowing it to bail out of Section 5 coverage. The parties also have agreed that the District's alternative claim challenging the constitutionality of Section 5 should be dismissed without prejudice, pursuant to Rule 41(a), Fed. R. Civ. P. Accordingly, the District, the Attorney General and the Defendant-Intervenors have filed a joint motion for entry of this Consent Judgment and Decree."

Bob Bauer as the Next White House Counsel?

FOX News reports that Bauer is under serious consideration to replace Greg Craig.

"SENATE PASSES BIPARTISAN BILL TO EASE VOTING PROCESS FOR MILITARY, OVERSEAS VOTERS"

See this press release. More from Pew.

"Constitutional Clash: When English-Only Meets Voting Rights"

Michael Zuckerman has posted this draft on SSRN (forthcoming Yale Law & Policy Review). Here is the abstract:

This paper examines the constitutional vulnerability of English-only laws as they relate to voting materials. The topic is timely in light of King v. Mauro, a recent Iowa decision that drew national attention by interpreting a state statute to bar non-English voter registration materials. In short, this paper argues that English-only policies as applied to voting are constitutionally suspect. After providing background about the English-only movement and the recent high-profile Iowa decision, the paper considers complex and uncertain areas of constitutional law, outlining how one might argue that English-only laws violate the Fourteenth and Fifteenth Amendments to the U.S. Constitution and the federal Voting Rights Act. In the end, the nation has an important choice to make: encourage participation in the electoral process, or use voting rights as means to disenfranchise language minority citizens. If the nation continues down the latter path, civil rights lawyers must be ready to respond.

California State Auditor Gives Her Perspective on Prop. 11 Redistricting Commission She is Helping to Create

Here, in this Sacramento Bee oped.

More Reactions to FEC's Emily's List Decision

Campaign Legal Center

Brad Smith

The Hill

Roll Call (updated)

Ninth Circuit Issues Its Opinion Explaining Its Ruling in Washington R-71 Referendum Case

You can find the Ninth Circuit's ruling here (link via HJB).

A few observations. First, the panel makes this notation about the Supreme Court's reversal of its stay order: "On October 19, 2009, the Circuit Justice stayed our stay order. Doe #1 v. Reed, No.09A356 (U.S. Oct. 19, 2009) (Kennedy, Circuit Justice). The application was thereafter referred to the full Court which confirmed the stay. Id. (Oct. 20, 2009). Not[h]ing in either of those orders affects our consideration of the merits of these appeals." Thus, regardless of the stay order, the Ninth Circuit holds that the trial court committed legal error in granting the preliminary injunction. This issue will ultimately be the one subject to the cert. petition to the Supreme Court, should a cert. petition be filed.

Second, the court sidestepped perhaps the key question in the case: "The State contends, with some force, that signing a referendum petition is not speech, but is instead, a legislative act, i.e., that it is an integral part of the exercise of the legislative power reserved to the people by the Washington Constitution. See State ex rel. Heavey v. Murphy, 982 P.2d 611, 615 (Wash. 1999) ("‘A referendum . . . is an exercise of the reserved power of the people to legislate .'.." (quoting Belas v. Kiga, 959 P.2d 1037, 1040-41 (Wash. 1998))). Because we assume, for purposes of this case, that signing a referendum petition is speech, we do not reach this argument and intimate no view on it."

What about Burdick v. Takushi, and the Supreme Court's rejection of the idea that voting is an expressive activity entitled to First Amendment protection? Does this or does this not apply to signing a ballot measure petition?

Finally, I would have expected more discussion of the ACLF case and some discussion of Brown v. Socialist Workers Party. This will be a very interesting case should the Court choose to take it.

All Bopp All the Time

AP offers Anti-gay marriage group challenges reporting requirements. You can find the documents in NOM v. McKee here.

More R-71 Litigation from Jim Bopp

A press release I've just received reads: "The Family PAC is a pro-family organization that would like to encourage Washington citizens to reject R-71 on November 3, 2009. Unless defeated, R-71 will expand domestic partnership rights and erode the institution of marriage. During the twenty-one days preceding an election, Washington law prohibits the Family PAC from receiving donations in excess of $5,000. The Family PAC has donors willing to contribute more than $5,000 to its effort, but is unable to accept the contributions because of the Washington law. This directly limits its ability to fight R-71 and its ability to protect the institution of marriage. Washington also requires the Family PAC to report the name, address, and employer’s name of individuals that give as little as $25. At this level, the information is irrelevant to voters and discourages individuals from making contributions. The Family PAC has filed suit in federal court and has asked the court to issue an order allowing it to accept contributions in excess of $5,000. It has also asked the court to exempt it from the reporting requirements."

"An under-the-radar ballot winner?"

See here on the California measure which would establish public financing for the Secretary of State's race. (I hope to ask California Secretary of State Debra Bowen about this next week, when she will be a guest in my election law class.)

"Shareholders Should Hear About Political Spending"

Ciara Torres-Spelliscy has written this commentary for Businessweek.

Breaking News: FEC Will Not Seek Rehearing En Banc in Emily's List Case

See this press release.
If the commissioners release any statements about the decision, I'll link.

Note that this decision does not preclude filing a cert. petition in this case. And, from the discussion on the election law listserv, there is a question whether the SG can seek rehearing en banc even if the FEC votes not to proceed. I think there was consensus that the SG can file a cert petition even if the FEC votes not to proceed. Not that I'm advising such a course of action.

UPDATE: You can read the very strong statement opposing rehearing en banc from the Republican commissioners here. You can find the more muted statement of Commissioners Bauerly and Weintraub here. The latter reveals the vote being 3-3. Chair Walther, as has been a common practice, has voted with the Democratic commissioners but not signed on to their statement of reasons. (His web page alone lacks a section on statements and speeches.) SECOND UPDATE: Walther's separate statement is here.

The Republican commissioners' statement really is a must read for FEC watchers. It is clear that these commissioners fully agree with Judge Kavanaugh's constitutional views in the Emily's List case, and this will have profound effects on rulemakings and adjudications going forward at the FEC.

MORE from Roll Call.

Fred Wertheimer comments.

STILL MORE: Politico: "The White House did not respond to requests for comment on whether it would support an appeal."

Military Voting Bill Expected to Pass Today

So reports an advisory from Senator Schumer's office. It will be part of a Defense authorization bill.

"Against Constitutional Mainstreaming: Toward a Proper Judicial Role in Dynamic Statutory Interpretation"

Betrall Ross has posted this draft on SSRN, which uses the VRA as its example. Here is the abstract:

This Article argues against an approach to statutory interpretation that I call "constitutional mainstreaming." The Supreme Court engages in constitutional mainstreaming when it interprets ambiguous statutes in accordance with the values emphasized in its constitutional jurisprudence. And in doing so, it rejects an interpretation that accords with values reflected in post-enactment statutes and agency interpretations. This interpretive approach, which is implicitly endorsed by dynamic statutory interpretation theory, undermines this theory’s own conception of legislative supremacy and its central premise that the Court should interpret statutes in a manner responsive to evolving democratic preferences. To better fulfill the mandate of legislative supremacy, the Court should resist the gravitational pull of the constitutional mainstream and look instead to the values reflected in the decisions of the institution best situated to be responsive to evolving democratic preferences, post-enactment legislatures and their delegates, the agencies. Addressing the four primary contexts in which the Court must interpret ambiguous statutes, I outline how the Court should proceed in each situation and address major objections to this approach. I conclude with a case study, which examines the Supreme Court's constitutional mainstreaming of Section 5 of the Voting Rights Act in Beer vs. United States and shows how the Court should have relied instead on values reflected in the re-authorization of the Act and agency interpretations of the Act.

McCain, Feingold Speak on Senate Floor About Citizens United

Here is the Feingold statement. If I can find a link to the McCain statement, I will update.
UPDATE: More on Sen. McCain's one hour speech on this subject at Roll Call ($).

"Ind. Decisions - Petitions to transfer filed in the Indiana voter ID case"

The Indiana Law Blog offers this report. See also this on Palmer v. Marion County.

"Public Corruption Investigation Urged in Texas"

Gerry Hebert has written this blog post.

"Republican FEC Commissioners Back Broader Ruling in Black Rock Group AO"

BNA offers this report about this statement issued by the Republican FEC commissioners.

"Avencia Launches Redistricting the Nation.com, a Ground-Breaking Public Engagement Web Application To Measure Compactness and Gerrymandering of U.S. Election Districts"

See this press release.

"Voting Technology in the U.S. and Abroad"

See here.

"National Academy of Sciences Releases EAC-funded Report on Statewide Voter Registration Databases"

See this press release.

Roundup of Washington Disclosure Supreme Court Stay Stories

Here.

Breaking News: Supreme Court Reverses Ninth Circuit, Reimposes Stay in Washington Referendum Signer Case

So reports SCOTUSblog. There was one dissent. More to come...

UPDATE: You can read the order here. Justice Stevens dissented, but he has not issued any opinion related to his dissent. The stay remains in effect until a petition for cert. is considered in timely fashion, with the result being that the information will not be disclosed until (at the least) after the election. That is somewhat problematic, not for formal mootness grounds, but because the interests in disclosure are different before and after the election.

I think that either in this case or eventually the Court is going to have to address disclosure issues again. The Court has generally been supportive of disclosure in the campaign finance context, but it has recognized in the McIntyre case some right to anonymous campaign spending. It has also been less supportive of disclosure in the context of ballot measure circulation, with the leading case here the ACLF case.

Notably, all of these issues arose before the Internet revolution, and the ease with which information flows on the Internet in a way that it never has before. One of the most thoughtful pieces on this question is Bill McGeveran's Mrs. McIntyre's Checkbook.

And there's a discussion of these issues at pages 64-66 of the 2009 supplement the the Lowenstein, Hasen, and Tokaji casebook in relation to the disclosure of donors to California's Prop. 8 measure. The Washington case differs in that these are ballot measure signers, not contributors.

"Lobbyists Sue to Remove June 2010 Ballot Measure"

This could be interesting. As I understand California pre-election review, this is the kind of substantive challenge that should await the election (assuming the measure passes).

"Election Commissions and Supreme Courts"

Ned Foley offers these thoughts.

Next Expected Chance for Citizens United Opinion: Nov. 3 (Election Day)

Today the Supreme Court issued orders, but it did not issue any opinions. It sits next for oral argument on Nov. 2, and usually issues opinions while in session on Tuesday or later in the week. This means the next expected chance for an opinion in Citizens United is Tuesday, Nov. 3, an appropriate day for the opinion, I'd say.

In the meantime, we wait for a full Court ruling on the stay request in the Washington referendum signers case. That could come at any time.

"A Grassroots Cautionary Tale"

Eliza on astroturfing.

"Districting amendments appear headed for ballot"

The latest from Florida.

"Field Study: Just How Relevant is Political Science?"

The NY Times offers this report.

"State Watchdogs Consider Regulating Campaigns' Electronic Messages"

Something to watch in California.

Justice Kennedy Temporarily Stays Release of Washington State Ref. 71 Signers Pending Disposition of Stay Request By Entire Supreme Court

See here.

I would not read anything either way in Justice Kennedy's order, which is like an order that Justice Ginsburg recently entered in a (non-election law case) pending the full Court's consideration of a stay request (which was denied in that earlier case).

"Show Me the Money! The Geography of Contributions to California's Proposition 8"

Michael Shin has written this article for the California Journal of Politics and Policy.

"Sandra Day O'Connor Participates in 9th circuit Oral Argument in Voting Rights Case"

Richard Winger reports. More here.

"GOP Launches Strategy to Trip Up Health Bill"

Roll Call:

Unable to mount a filibuster on their own and calculating that Democrats are on track to send a health care bill to Obama by year's end, Senate Republicans figure the only way to stop or reshape the measure is to give the public enough time to figure out what's in it and what they don't like about it.

Doing that is going to take some time, and the process of amending bills during a floor debate -- which can include demanding a 60-vote threshold for all amendments -- could provide the minority ample opportunity to slow things down. Republicans could also benefit from some built-in delays, including the fact that Democratic leaders have said they'd like to wait for a Congressional Budget Office cost estimate on the bill before beginning debate.

"DOJ rejects Handel's appeal of voter verification"

The AJC reports (more from AP). The interesting question is whether Georgia will appeal this decision, and, if it does, whether Georgia will make a post-NAMUDNO constitutional attack on section 5 of the Voting Rights Act.

"D.C. Voting Rights May Be Attached to Defense Spending Bill"

Roll Call offers this report.

"Congressional Ethics Inquiries Drag on, Despite Vows to End Corruption"

The NY Times offers this extensive report.

Fascinating Judicial Recusal Post-Caperton Controversy Before Wisconsin Supreme Court

See here (H/T HJB).

"Old Dictionaries" and Statutory Interpretation

One of my favorite parts of the NY Times Magazine was William Safire's "On Language" column. At least for now, the column survives his passing. This week's column, by Ammon Shea, is on "old dictionaries," and it mentions Justice Scalia's attraction to them in his statutory interpretation cases.

The article references this HLR student note by Kevin Werbach. I have not read that piece, but I highly recommend my colleague Ellen Aprill's excellent article on the subject, The Law of the Word: Dictionary Shopping in the Supreme Court.

"Judge Says Virginia Violated Rights of Overseas Voters"

BLT offers this report.

"Republican senator presses plan to exclude non-citizens from the Census"

USA Today offers this report.

"Voting Rights Groups Set Record Straight on Lawsuit Targeted by State Republican Party"

This press release has been released by Demos, the Lawyers Committee, and Project Vote.

"Heart of reform is in drawing political maps, not finance, some say"

Medill offers this report.

"Release R-71 signatures, court says, but appeal planned"

The Seattle Times offers this report. Richard Winger explains that the Ninth Circuit panel says its opinion will be released later (which will of course complicate the attempt to take the case en banc).

"Acorn's Woes Strain Its Ties to Democrats"

The NY Times offers this report.

Follow-Up on McCain/Obama Bundling Numbers

The other day I noted some unusual numbers for John McCain's bundling activity on the Center for Responsive Politics website.

I've now heard from the Center that they had some kind of computer programming error with the numbers, so they have reverted on their page to the earlier numbers: "Together, 537 elites have directed at least $76,450,000 to McCain, and 561 have gathered at least $63,200,000 for Obama. "

My R.A.'s count of the bundled numbers reported on the McCain website (as of 8/22/2008) is around $61 million, less than the CRP numbers. I am still looking for an archived copy of Obama's numbers, which were at one time posted at this link. Some people have sent me files purporting to be the information from the website, but I can tell from some of the reporting that it was not from the most updated list posted by the Obama campaign. Still looking.

House Committee on Judiciary to Hold Hearing on Judicial Recusals after Caperton

See here.

"9th Circuit Panel Seems Unlikely to Rule in Favor of Petition Secrecy"

Richard Winger reports from oral argument.

Sam Issacharoff on Citizens United

Here, at "New Deal 2.0."

"Scandals About More than Sex"

Eliza's latest on Edwards, Ensign, Sanford, and campaign finance/ethics laws.

Bray on "Power Rules"

Samuel Bray has posted this draft> (forthcoming, Columbia Law Review) on SSRN. It deals in part with some election law issues. Here is the abstract:

This Essay offers a unified framework for understanding how law can protect a vulnerable person from a powerful one. One option law has is to penalize the powerful person if she harms the vulnerable person. But sometimes law shifts its focus from regulating the infliction of harm to regulating a person's accumulation of power to inflict harm. Legal rules that reflect this shift in focus can be called "power rules'; they expressly restructure underlying relations of power and vulnerability. Power rules are attractive because they allow legal regulation of situations in which rules directly regulating harm ('harm rules") are not possible. In other situations, power rules can complement harm rules and improve their effectiveness. But power rules have drawbacks, too: they tend toward overbreadth, encourage more use of expressive lawmaking, and increase enforcement discretion. The concept of power rules helps explain patterns in the use of legal rules, especially in contexts of bargaining, competition, violence, persuasion, and the performance of relational statuses (e.g., fiduciary). This concept also illuminates the trade-offs involved when lawmakers choose among different methods of protecting vulnerable persons.

"Will Chris Daggett Fall Victim To The Ballot Order Effect?"

Via Richard Winger, who has been all over the New Jersey ballot design/ballot designation issue, comes this Marc Ambinder post. Marc makes some good points, though I see the issue more as one of ballot design than ballot order (more coverage from Richard here and here). I had been hoping to write about this significant issue, but just have not had the time. Though I am very skeptical that Daggett could win, ballot design could well be the deciding factor in this race. In other words, the New Jersey race could be decided ultimately by how local election officials in New Jersey decide in their broad discretion how to list third party candidates on the ballot.

"Republicans focus on ACORN theme in new Web site"

The St. Louis Post Dispatch offers this report.

"ACLU Urges Department Of Justice To Object To Changes In County Board Elections In Georgia"

See this press release.

"On Judicial Elections and Judicial Recusal"

This post appears at the BLT.

" The Voting Rights Act Through the Justices' Eyes: NAMUDNO and Beyond"

Joshua Douglas has written this article for the Texas Law Review's online companion.

Dept. of "Uh, Oh"

Times-Standard (CA): "Eureka City Schools school board candidate Gaye Gerdts had a plan to win the hearts and votes of the roughly 7,000 people living in her 1st Ward. The only problem was, unbeknownst to Gerdts -- and apparently to the Humboldt County Elections Office, which Gerdts had relied on for her campaign information -- the school board seat is elected at large, by voters throughout the school district, not just from Gerdt's ward.'"

"CA TTBR Investigators Send Letter to the EAC"

Joe Hall offers this blog post. It begins:

Today we sent a letter to the Election Assistance Commission signed by a number of the investigators involved in the California Secretary of State's Top-to-Bottom Review of voting systems.

The letter points out that the EAC, and a lab that performs certification testing of voting systems, disregarded technical information about voting system security from state-level evaluations of a particular voting system. This specific instance raises broader questions about the EAC's treatment of such information under its testing and certification program.

"The Reform of Campaign Expert Bauer"

Roll Call offers this must-read profile of Bob Bauer. ($) It includes this nugget on the EMILY's List case: "Although most experts agree the case's judges overreached in deciding it, sources say the decision is causing Bauer considerable discomfort. The case involving the reproductive rights group apparently is testing the delicate detente between the DNC's lawyer, party insiders and the campaign finance community --albeit privately, for now."

CA Gov. Vetoes Measure Barring Initiative Circulators from Being Paid Per Signature

Richard Winger reports.

Adam Liptak on the "Honest Services" Cases Before the Supreme Court

See here.

"Democracy in a Mobile America"

Scott Novakowski has written this post for the Demos blog.

Interesting Update to McCain Bundling Numbers

When I wrote my chapter on presidential primary campaign finance changes for this volume, I included the following sentence: "In the 2008 campaign, as of August 18, 2008, 534 bundlers raised at least $75,750,000 for McCain, and 509 bundlers raised at least $63,300,000 for Obama. (Center for Responsive Politics 2008.)"

For a new chapter I'm writing on presidential financing (in both the primary and general election periods), I've gone back to the CRP web page and notice a dramatic increase in the CRP bundling figures for John McCain: "Together, 540 elites have directed at least $207,200,000 to McCain, and 561 have gathered at least $63,200,000 for Obama."

The difference is not one based on newly released data. The CRP page reads at the bottom: "Bundlers' names and ranges based on information available on the candidate's Web site August 18. Individual contribution data based on data available from the Federal Election Commission on 7/13/09."

How did the McCain figure go from at least $75 million to at least $207 million?

"How the Obama Administration Threatens to Undermine Our Elections"

John Fund's latest. As a strong supporter of universal voter registration, I look forward (with considerable skepticism) to reading how Fund will explain how "'universal voter registration[' is] a reform that is already used in a half dozen states but has only resulted in serious fraud."

CA to Allow 17 Year Olds to Pre-Register to Vote

See here, noting the approval of AB 30.

California Chief Justice George Blames "Dysfunctional" California State Government on the Initiative Process

Howard rounds up the stories. If anyone has a link to Chief Justice George's speech to the American Academy of Arts and Sciences, please send it along.

Elmendorf on "Refining the Democracy Canon"

Next month, the Stanford Law Review will publish my article, "The Democracy Canon." Chris Elmendorf has written an article (forthcoming Cornell Law Review) responding to my article. Cornell will also publish a response from me (which I will post on SSRN when I have a draft). Here is Chris's abstract:

This Article responds to Professor Rick Hasen's important new work, The Democracy Canon. Hasen identifies an intriguing and until now largely unnoticed practice in many state courts-to wit, the construing of election statutes with a strong thumb-on-the-scales in favor of easing voters' access to the polls and of rendering ballots eligible to be counted. Hasen defends this "pro vote" canon of interpretation and commends it to the federal courts. I argue that Hasen's Canon cannot stand on the normative foundation he has poured for it, and that the federal courts' adoption of the Canon would probably have significant costs (for example, weakened incentives for bipartisan compromise on electoral reform) that Hasen either overlooks or undersells. I propose three alternative"'democracy canons" arguing that each would be more normatively defensible and less politically treacherous than Hasen's Canon. The first, the Effective Accountability Canon, would stand in for the Supreme Court's reluctance to directly enforce the constitutional principle (arguably embodied in the Guarantee Clause, Article I, and the Seventeenth Amendment) that electoral systems should be designed to render elected bodies responsive to the interests and concerns of the normative electorate, i.e., the class of persons entitled to vote. Representative voter participation and aggregate voter competence would be this canon's polestars. A second option, the Carrington Canon, counsels for the narrow construction of voting requirements enacted on a substantially party line vote. It could also negate the normal presumption of deference to administrative agencies-with respect to voting issues-if the agency is headed by a political partisan. The Carrington Canon would function as a means of indirectly enforcing an underenforced constitutional norm against ideological discrimination with respect to the franchise. Third, plausible arguments can be mounted on behalf of what I term the Neutrality Canons, which weigh in favor of statutory interpretations that reduce the fact or appearance of judicial partisanship.

Sen. Schumer: Rules Committee to Investigate Diebold Merger

See here.

Fred Wertheimer statement on FEC Coordination NPRM

"It's about time."

"California 2010 'Top-Two' Proposal Is More Restrictive for Voters than the California 2004 'Top-Two' Initiative"

Richard Winger opines.

Mona Charen on Citizens United

Here at NRO.

"U.S. Term Limits Condemns CA Governor Schwarzenegger for Calling Term Limits 'Crazy'"

This is currently the top item under "News" at the U.S. Term Limits home page.

"FEC Votes 6-0 to Advance New Proposals To Regulate 'Coordinated Communications'"

BNA offers this important report.

A Question Answered

Here, as a separate document, is the draft coordination rule.

It must be nice for the FEC commissioners to know that no matter what they do they are likely to be sued by somebody over this, should they agree on a rule.

New Jersey Public Advocate Releases Report on Close Elections in State

See here.

"SpeechNow.org Challenge to FEC Limits Set for Consideration by Full D.C. Circuit"

BNA reports ($).

FEC to Consider Post-Shays III Rulemaking, But Omits Any New Coordination Rules

See here. What's going on with the coordination rules?
Thanks to a reader for passing this along.

Jonah Goldberg on Expanding the Size of the U.S. House

See here.

"Caplin & Drysdale Submits Comments to SEC on Proposed Pay to Play Law"

See here.

Ronald Dworkin on Citizens United

See this blog post at the NY Review of Books website.

In the Election Law Mailbag

Michael Hanmer, Discount Voting: Voter Registration Reform and Their Effects (Cambridge 2009)

William Josephson, Senate Election of the Vice President and House of Representatives Election of the President, 11 University of Pennsylvania Journal of Constitutional Law 597 (2009) (not yet on the journal's website)

Elaine Kamarck, Primary Politics: How Presidential Candidates Have Shaped the Modern Nominating System (Brookings 2009)

Miranda McGowan, Do as I Do, Not as I Say: An Empirical Investigation of Justice Scalia's Ordinary Meaning Method of Statutory Interpretation, 78 Mississippi Law Journal 129 (2008) (not online)

Kenneth Miller, Direct Democracy and the Courts (Cambridge 2009)

William Salka, Reforming State Legislative Elections: Creating a New Dynamic (Reiner 2009)

"Is Welfare Reform to Blame for Declining Voter Registration?"

Lisa Danetz ponders.

Quote of the Day

"Forget the film of the pimp and prostitute: Watching a film of Lewis's performance yesterday would probably be enough to cause lawmakers to cut off ACORN's federal funding. "
--Dana Milbank, on Bertha Lewis's National Press Club appearance.

"Federal observers monitor Bethel elections"

The latest from Alaska. The certification is here.

"You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases"

I have posted this draft on SSRN. Here is the abstract:

This brief essay responds to an article by Professor James A. Gardner, The Dignity of Voters - A Dissent, appearing in a symposium in the University of Miami Law Review. Gardner offers a sustained critique of a line of Supreme Court election law cases recognizing "dignitary rights" of voters, including Shaw v. Reno, recognizing the "unconstitutional racial gerrymander," Bush v. Gore, recognizing the right to have one's vote counted in a recount according to uniform voting procedures; and Purcell v. Gonzales, a voter identification case in which the Court recognized a right of voters not to have their votes "canceled out" by voter fraud (or their "feelings" hurt by such fraud).

I make two points. First, Gardner mistakenly explains the dignitary rights cases as the Supreme Court embracing the "individual rights" side in the "rights-structure" debate among election law scholars. Instead, these developments show the Court embracing a misguided structural approach to election law cases (albeit clothed in the language of rights). Shaw reined in what the Court majority viewed as an out-of-control Justice Department overly interfering with state prerogatives in redistricting; Bush reined in what the Court majority viewed as an out-of-control Florida Supreme Court overly interfering with administrative recount procedures in the highly-charged context of a presidential election recount. Purcell reined in civil rights plaintiffs interfering with state administrative prerogatives in setting forth the rules for conducting elections. In each of these cases, voter "rights" are merely a stand-in for structural concerns of the Court.

Second, using the individual rights approach, these cases were incorrectly decided. Under the individual rights approach, the Court should protect only "core" equality rights that affect the real allocation of political power among political equals in a democracy. In Shaw, the Court incorrectly protected voter rights in the districting process that had no potential to affect political power relationships. In Bush and Purcell, the Court failed to recognize rights on both sides of the case, and that the rights of voters on what turned out to be the losing side easily trumped rights on the winning side of the case. Thus, Gardner's conclusion that these cases were wrongly decided is absolutely correct, even using an individual rights framework to reach this result. The Court should continue to focus on rights in its election law jurisprudence, but not on inchoate "dignitary" rights that fail to affect the allocation of political power.

FairVote Newsletter Now Available

Read it here.

Tom Perez Confirmed to DOJ Civil Rights Post

Details here.

Ken Blackwell Oped on Voter Registration Modernization

Here, in the Washington Times.

"Democrats Return Fire On Black Panthers Case"

"Main Justice" reports.

von Spakovsky Responds to WaPo Article on Bush DOJ Civil Rights Enforcement

Here.

"Voting Rights Expert to Run for SOS"

The Michigan Messenger reports.

"Allison R. Hayward: Ban on small-business political bucks is unconstitutional"

The Washington Examiner offers this oped.

" Who forgot the $65 million referendum question?"

The Philadelphia Inquirer offers this report.

"CCP files friend-of-the-court brief in Colorado free speech case"

See here.

As the October 2009 Supreme Court Term Begins, One 2008 Case Remains Undecided

That case, of course, is Citizens United, about which I've spilled a lot of virtual ink. I continue to believe we could see an opinion by mid-November, but there is no deadline.

One theme in my writing on the Roberts Court and campaign finance is how crucial the replacement of Justice O'Connor with Justice Alito has been. We've gone from a period of the Court's greatest deference to campaign finance regulation to its period of greatest skepticism and deregulation. That theme appears in this Washington Post report on Chief Justice Roberts, Justice Alito, and the First Amendment cases. It includes this quote from Walter Dellinger: "I think we may look back in about 2020 and see that the replacement of Justice O'Connor by Judge Alito had the greatest impact on the court of any appointment in more than a quarter of a century."

Jonathan Turley also writes about the case in an LA Times oped today. The oped includes this statement that makes no sense to me: "For many free-speech advocates, it is hard to declare this film to be electioneering but not other films, such as liberal Michael Moore's anti-Bush documentary, 'Fahrenheit 9/11.'"

No one has claimed that "Hillary the Movie" should be treated differently than "Farenheit 9/11." Had Moore tried to broadcast this film before the election in the same way as Citizens United did, it would have raised the same questions. Indeed, if my memory is correct, Moore's advertising run before the election did not feature Bush's name or likeness to avoid the ad being subject to the BCRA EC disclosure rules.

"From Bush v. Gore to NAMUDNO: A Response to Professor Amar"

Ellen Katz has posted this draft on SSRN (forthcoming, Florida Law Review). Here is the abstract:

In his Dunwoody Lecture, Professor Akhil Amar invites us to revisit the Bush v. Gore controversy and consider what went wrong. This short essay responds to Professor Amar by taking up his invitation and looking at the decision through a seemingly improbable lens, the Supreme Court's decision last June in Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO). Among its many surprises, NAMUDNO helps illuminate the Court's fundamental error nine years ago.

Professor Amar forcefully argues that the mistrust with which the Justices in the Bush v. Gore majority viewed the Florida Supreme Court was both unjustified and disastrously consequential. What NAMUDNO helps us see is that such mistrust, be it mistaken or warranted, need not be incompatible with a sound judicial response. NAMUDNO shows that the Court’s most profound error in Bush v. Gore was not the premise from which the Justices began, though flawed it may have been, but rather where they went from there.

Supreme Court Denies Cert in Florida Lobbying Disclosure Case

The Supreme Court has denied cert on 09-154, Florida Association of Professional Lobbyists, Inc. et al. v. Division of Legislative Information Services of the Florida Office of Legislative Services et al. Scotusblog has the cert. petition and other relevant documents here (scroll down). The question presented was "Whether a state law that requires disclosure of the identities of those paying for grassroots lobbying -- 'opinion articles, issue advertisements, and letter writing campaign' -- facially violates the First and Fourteenth Amendments due to vagueness and overbreadth.Whether a state law that prohibits all gifts for the purpose of lobbying facially violates the First and Fourteenth Amendments due to vagueness and overbreadth."

"FEC Scheduled to Take Up Rulemaking To Implement Court Ruling on Coordination"

BNA reports ($).

"Herdt: Can a 17-year-old register to vote? It depends"

Timm Herdt has written this column in the Ventura County Star.

"NJ court reinstates ban on voting site exit polls"

AP offers this report about this ruling (via How Appealing).

Linda Greenhouse on What She Thinks Happened Behind the Scenes in NAMUDNO

Here. In response to Linda's piece, I'm hoping that when Justice Ginburg retires, she will believe it appropriate to make her papers available much sooner than Justice Souter did. (She seems to believe in a great deal more transparency about Court processes than some of the other Justices.)

The oped also contains the good news that Linda will be writing an opinion column on law for the Times.

Barry Friedman on NAMUDNO and Judicial Minimalism

Here, in the New Republic.

"A Right to Vote: Modernizing Voter Registration"

Tova Wang has this post on the Demos blog.

New Electionline Weekly Now Available

Here.

"ACLU Report Finds Continuing And Pervasive Voting Rights Violations In Indian Country"

The ACLU has issued this press release about this important new report.

"Acorn to Stand Trial in Nevada Case"

The NY Times offers this report.