Major Punitive Damages News in California

A bit off the topic from election law, but on an issue I follow closely in my Torts and Remedies courses: The California Supreme Court issued an important punitive damages opinion today, which seems to endorse a 1:1 ratio in cases of significant punitive damages. My friends at Horvitz & Levy analyze the case and note the curiosity of the CA Supreme Court's failure to cite the Exxon Shipping case on this question. This ruling could reverberate for years in CA tort cases.

"Federal Court Lawsuit Settlement Brings Ohio Into Compliance with National Voter Registration Act"

Demos has issued this press release.

"Statutory Interpretation In The Roberts Court's First Era: An Empirical and Doctrinal Analysis"

Anita Krishnakumar has posted this draft on SSRN. Here is the abstract:

Empirical studies of the Supreme Court's statutory interpretation cases are few and far between. Those that do exist tend to focus on a sampling of cases over time, cases interpreting statutes in one area of the law, or on one specific aspect of the Court's interpretive practice, such as its reliance on legislative history. This Article takes a different approach, examining all of the Roberts Court's statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article's approach is both empirical and doctrinal, in that it presents descriptive statistics illustrating the Court's and individual Justice's rates of reliance on fourteen different tools of statutory construction, as well as engages in doctrinal analysis of the Court's statutory cases, highlighting discernable patterns in the individual Justices' interpretive approaches. The Article makes two significant contributions to the field of statutory interpretation: First, it identifies an interpretive divide between the Justices on the Roberts Court over what I call "legal landscape coherence" versus "statute-specific policy coherence." In brief, the legal landscape coherence Justices focus on the legal framework surrounding the statute at issue and seek the interpretation that fits most coherently into the existing legal structure; while the statute-specific policy coherence Justices focus on the individual statute at issue and preference the interpretation that creates a consistent and coherent policy across like situations and across time. The Article maps out the Justices' theoretical divide in detail and shows how the divide translates into stark empirical differences in the Justices' individual rates of reliance on particular interpretive canons and tools. Second, prior empirical studies have shown that Supreme Court Justices frequently reference the practical consequences likely to result from an interpretation when deciding statutory cases. This Article breaks new ground by uncovering an important difference in the form of practical consequences to which the different Justices tend to give weight, pointing out that the landscape coherence Justices tend to focus on the administrability of the interpretation -- e.g., its effect on judicial resources, the difficulty of implementing it, and the clarity and predictability of the rule created; while the statute-specific Justices focus on the policy effected by the interpretation -- e.g., whether it fosters a consistent application of the statute over time, the arbitrariness of the policy created, and the justness of the interpretation. The Article concludes with three case studies illustrating how the Roberts Court's interpretive divide works in practice.

"Administration Promotes Lobbyist "Brain Drain'"

Eric Wang has written this Roll Call oped ($).

Eliza Newlin Carney on the MOVE Act

Here.

Larry Gold on CU, and the Questionable Basis for Labor Union Spending Limits

Here, at ACS Blog.

WaPo Editorial on New FEC Travel Rules

See here.

"Minor Party and Independent Candidates Are Involved in Constitutional Election Law Cases in At Least 21 States"

BAN summarizes.

"A chance for Floridians to redraw rigged districts"

Dan Smith has written this oped in the St. Petersburg Times.

Paying ACORN, And Constitutional Avoidance by the Executive Branch

Here's a post likely only of interest to hard-core Legislation geeks.

Over the weekend, the NY Times issued a report which begins: The Justice Department has concluded that the Obama administration can lawfully pay the community group Acorn for services provided under contracts signed before Congress banned the government from providing money to the group." The article links to this five-page opinion on the question written by David Barron of the Office of Legal Counsel.

This paragraph in the Times story caught my eye: "Moreover, [Barron] argued, requiring the government to cancel contracts with a specifically named entity --- "including even in cases where performance has already been completed but payment has not been rendered" -- would raise constitutional concerns best avoided by interpreting the law differently."

Here is the constitutional avoidance paragraph in the opinion letter itself:

Reading section 163 to prohibit payments to ACORN or its affiliates, subsidiaries, or allied organizations to satisfy a binding contractual obligation undertaken before enactment of section 163 would "undo a binding governmental contractual promise." Cherokee Nation, 543 U.S. at 646. In accord with Cherokee Nation, the better reading of the section is therefore that it does not prohibit such payments. This reading of "provided to" is especially appropriate here because, consistent with the canon of constitutional avoidance, see, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 483 U.S. 568, 575 (1988), it not only avoids abrogating binding governmental contractual promises but also avoids the particular constitutional concerns that may be presented by reading the statute, which applies to specific named entities, to abrogate such contracts, including even in cases where performance has already been completed but payment has not been rendered.

Barron probably reached the right result here, but I was struck by the reliance on the doctrine of constitutional avoidance (and not only because I've been doing some writing on the subject). Trevor Morrison, in his very important Columbia Law Review article, "Constitutional Avoidance and the Executive Branch," uses the Bush Administration's OLC opinions to make the case against the executive branch relying upon the doctrine of constitutional avoidance.

I'd love to know what Trevor thinks about this Obama Administration use of the avoidance doctrine, but I can't ask him. He's an associate White House counsel (though working on national security affairs).

I wonder if there are other Obama Administration uses of the avoidance doctrine.

UPDATE: To be clear (following a reader comment), the issue is not whether the executive branch makes avoidance arguments in briefs to the Supreme Court. It is whether the executive branch makes avoidance arguments in defense of its own actions. As Morrison explains in his abstract: "Executive branch actors regularly use the avoidance canon. Indeed, some of the most hotly debated episodes of executive branch statutory interpretation in recent years - including the initial torture memorandum issued by the Justice Department's Office of Legal Counsel, the President's signing statement regarding the McCain Amendment's ban on the mistreatment of detainees, and the Justice Department's defense of the National Security Agency's warrantless wiretapping program - feature prominent reliance on the avoidance canon. Typically, such reliance is supported by citation to one or more Supreme Court cases. Yet those citations are rarely accompanied by any discussion of the values courts try to serve when they employ avoidance. Are those values specific to the federal judiciary - for example, facilitating judicial deference to legislative majorities - or do they reflect substantive commitments extending beyond the courts? Equally lacking is any sustained consideration of interpretive context: Does their particular institutional location and function enable executive actors to call upon sources of statutory meaning that are unavailable to courts, rendering rough tools like the avoidance canon unnecessary?"

When Will We See an Opinion in Citizens United?

This weekend AP moved a story beginning: "For the first time under Chief Justice John Roberts, the Supreme Court failed to issue opinions before Thanksgiving in any of the cases that were argued in recent months."

The article also noted that Citizens United, reargued in early September after no decision was reached last term, also has not yet been decided.

I had predicted an opinion in CU by mid-November, by looking at how much time it took to decide the 2003 McConnell case. That case was argued in early September as well, and an opinion issued in early December. McConnell, however, was a much more complicated case (measured by the number of issues the Court had to decide), so I figured I could shave a few weeks off the last timetable. I also expected the Court to move quickly because the statute vesting the Supreme Court with appellate jurisdiction of these appeals requires expedition of decision, and I thought the Court would want to decide things that could affect the 2010 election quickly.

Now we are into December, and unless an opinion issues by Dec. 9 (the last day of arguments in December), we might not see the opinion until 2010. [Correction: The Court will issue orders on Dec. 14, and it could issue an opinion or more on that day as well.]

What's taking so long? I have no inside information, and I don't think that the fact that it is taking so long necessarily indicates that the case will be a blockbuster. That's one possibility---a decision overturning Austin, with bitter dissents--but there are other possibilities as well. The Chief could write a narrow opinion as in WRTL or NAMUDNO, and Justice Scalia could be crafting another "faux judicial restraint" concurrence. Justice Sotomayor could be writing a dissenting opinion arguing that the Court took a wrong turn a century ago in recognizing constitutional rights of corporations (something she mused about at oral argument). There are many possibilities. We'll just have to wait and see.

And I think it is really too early to say what a post-CU world might look like, and what might be constitutional post CU (such as the FAIR Elections Now Act). There will be plenty of time to parse the decision....once we have an opinion to parse.

City Hall News on the Working Families Party in NYC

Another cautionary tale about modern fusion politics in NYC.

"Lobbyists pushed off advisory panels; White House initiative to limit influence could affect thousands"

The Washington Post offers this important report.

"Have the Media 'Falsely Framed' ACORN?"

Don't miss this extensive report by Christopher Martin and Peter Dreier in Editor & Publisher.

Thanksgiving Blogging Break

Back on Monday. Happy Thanksgiving to my readers and their families!

von Spakovsky: Bob Bauer Wants To Criminalize Talk About Voter Fraud

von Spakovsky: "The spurious claims made in the [Bauer] letter were pretty outrageous at the time, but what is even scarier is that we now have a White House counsel who has asserted that anyone who talks about voter fraud, including the type of massive voter-registration fraud committed by ACORN, should be investigated and prosecuted by the Justice Department for voter intimidation.... Since I write about voter fraud fairly often, I guess I should be on the lookout for that grand-jury indictment or a call from the FBI."

"Louisiana Redistricting: An Ugly Post-Katrina Partisan Mess (The Complete Analysis)"

The Rose Report gives this very detailed analysis.

Hoffman Concedes; Speaks More on Election Controversy

Watertown Daily Times: "[In his statement,] Mr. Hoffman makes clear he won't ask for a recount because he doesn't think it will change the outcome. ...He apologizes for an 'unfortunate and poorly worded fundraising e-mail' that implied that 'election commissioners had somehow acted improperly.' He doesn't apologize for suggesting 'ACORN, the unions and the Democratic Party' 'tampered' with ballots. In fact, he makes no mention of it."

"Making Sense of Facial and As-Applied Challenges"

Alex Kreit has posted this very interesting and important draft on SSRN (forthcoming William and Mary Bill of Rights Journal.). Here is the abstract:

This article challenges the conventional understanding of "facial" and "as-applied" challenges. Under the Supreme Court's jurisprudence, constitutional challenges can be sorted into two distinct categories: "facial" and "as-applied." A facial challenge is typically described as "a head-on attack on the legislative judgment, an assertion that the challenged statute violates the Constitution in all, or virtually all, of its applications" and, as a result, is invalid in its entirety. An "as-applied" challenge, by contrast, is one where the litigant "concedes that the statute may be constitutional in many of its applications, but contends that it is not so under the particular circumstances of the case." The two categories are believed to form the foundation for a set of substantive rules that control when a court may strike down a statute in its entirety or only overturn the application of the statute in the case at hand. Under these rules, the law strongly favors as-applied challenges on the grounds that they are more consistent with the goals of resolving concrete disputes and deferring as much as possible to the legislative process.

This account of facial and as-applied challenges is by now a familiar part of the constitutional landscape and is generally accepted in the courts. Yet some of the most basic details about the facial and as-applied categories remain surprisingly unclear. For instance, is the choice between facial and as-applied challenges one that a litigant makes when she brings her claim, or is it one that a court makes when it analyzes her claim? Do the rules regarding facial and as-applied challenges limit the adoption of constitutional tests, such as purpose-based tests, that might lead to the facial invalidation of statutes? Or do they relate to the remedial doctrine of severability, which comes into play only after a court has already applied the relevant constitutional test and found a violation? Is the key to distinguishing between facial and as-applied challenges the extent to which the court relies on the specific facts in the case at hand to reach its decision? If so, when is it appropriate for a court to consider something other than those specific facts? Neither the case law nor the academic literature provides a satisfactory answer to these fundamental problems.

This article contends that these questions remain unanswered because categorizing cases into "facial" and "as-applied" challenges, and relying on these categories to inform case outcomes, is an inherently flawed and fundamentally incoherent undertaking. This is because the fate of a statute in the face of a constitutional challenge depends on distinct considerations that cannot be reduced to a single inquiry or set of rules. The article further argues that the Court, in its attempt to build a universally applicable law of facial and as-applied challenges, has only created unnecessary confusion, by obscuring the real issues that animate results in constitutional cases. The article concludes that we would be better served by abandoning the idea that there is, or can ever be, a "law" of facial and as-applied challenges.

"Public Advocate releases review of voting machine contracts, 11/24/09"

From the New Jersey Public Advocate.

"Political consultant charged with impersonating opposing campaign's chief of staff on 'Robocalls'"

Newsroom New Jersey reports.

CA Gov. Nominates "Top Two" Advocate Abel Moldonado for Lt. Gov.

The story is here. Blog readers will recall that putting the top two primary on next spring's CA ballot was the price to get Maldonado's vote for a package of budget reforms (a package that the voters later voted down, by the way, leaving the top two primary as perhaps the most significant change to come from the package of proposed reforms).

It is an interesting political calculation for Democrats in the state legislature whether to vote to confirm him. On the one hand, it would give Maldonado a leg up in running for lt. governor in the next election. On the other hand, perhaps if he leaves the district would elect a Democrat, giving Democrats almost the votes they need to overcome Republican budget resistance. My guess is that Dems. will jump at the chance for another Democratic seat in the state Senate.

"California Court Re-Affirms Tentative Decision; Keeps Public Funding Measure on Ballot "

Richard Winger reports.

Sandy Levinson on Tom Friedman on Gerrymandering Etc.

Here, at Balkinization.

No Lawn Mowers in the Park

Courtesy of the Georgia Supreme Court, a variation [corrected link] on the Legislation chestnut, "No vehicles in the park." I prefer the food stays in the kitchen.

"Are Mapmakers Able to Target and Protect Congressional Incumbents?"

Chad Murphy and Antoine Yoshinaka have written this article for American Politics Research. Here is the abstract:

Can those in charge of redistricting foster electoral competitiveness by targeting some congressional incumbents while protecting others from potent competition? We provide an answer by presenting the dynamic redistricting thesis, which holds that the type of redistricting plan and the time passed since its enactment affect the emergence of high-quality congressional candidates. We demonstrate that the effect of redistricting on competition depends on whether incumbents belong to the party that controlled the redistricting process. We show that partisan plans have predictable systematic effects, with incumbents in the minority more likely to face strong opponents. Moreover, the effect of redistricting on competition is highest at the beginning of the 10-year redistricting cycle and diminishes in a nonlinear fashion over the course of the cycle. The implications of our theory and findings for democracy are apparent: Institutions are an important determinant of the variation of electoral competition across time and space.

Who is Behind the Anti-Robocall FEC Preemption Argument?

TPM digs in.

"CAMPAIGN FINANCE AND THE 2008 ELECTIONS: HOW SMALL CHANGE(S) CAN REALLY ADD UP"

FEC Commissioner Ellen Weintraub and her Counsel/Executive Assistant Jason K. Levine have written this article for the St. John's Journal of Legal Commentary.

"Chevron as a Canon, not a Precedent: An Empirical Test of what Motivates Judges in Agency Deference Cases"

Bill Eskridge and Connor Raso have posted this draft on SSRN. Here is the abstract:

Legal scholars almost universally believe that federal judges defer to agency interpretations of statutes. The debate has therefore focused on when judges should defer and how judges should operationalize a deference regime doctrinally. Such normative debates about deference rest upon factual assumptions that have not been rigorously tested; drawing from the entire population of Supreme Court cases (1984-2006) our empirical finds that Supreme Court Justices do not generally afford deference precedents stare decisis effect, but that the policies underlying the major deference regimes do have bite at the Supreme Court level. We also find that judicial ideology affects the Justices' applications of deference regimes but does not explain why different Justices prefer different doctrinal formulations; we advance the hypothesis that the Justices’ expressed preferences are genuine, but do not dominate ideology and other context based factors in actual cases. Deference regimes are more like canons of statutory construction, applied episodically but reflecting deeper judicial commitments, than binding precedents, pretty faithfully applied or distinguished. Our study suggests that most academic proposals to "reform" deference doctrines would have little or no bite at the Supreme Court level; more modest proposals to clarify such doctrines would probably be (modestly) helpful, however.

"Loophole.com: How the FEC's Failure to Fully Regulate the Internet Undermines Campaign Finance Law"

Daniel W. Butrymowicz has written this student comment for the Columbia Law Review.

Election Law in the Harvard Law Review Supreme Court Issue

Pam Karlan, Larry Lessig, and Penny White write about Caperton v. Massey.

Students cover NAMUDNO and Bartlett v. Strickland.

Holtzman Vogel Law & Policy Update Now Available

See here.

Read Amicus Briefs in Indiana state supreme court voter id case

See here.

"No Voting Machine Virus in New York-23 Election"

See this report at the Verified Voting blog.

"Voter Preregistration Report"

From Michael McDonald's blog:

Preregistration is a policy that permits young persons to register when they are as young as age 16 so that they are ready to vote when they become voting age. A report on prepregistration programs in Florida and Hawaii - the two states that have run preregistration programs prior to the 2008 election - is now available here. The report finds that these states preregister tens of thousands of eligible young people who remain on the voter rolls at rates comparable to the adult population. Preregistration appears to have a modest positive stimulative effect on voter turnout. Recommendations on implementation of preregistration programs are made based on interviews with Florida and Hawaii election administrators.

"Hoffman Claims Voter Fraud"

See here.

Will Ohio Pass an Election Reform Bill This Year?

See here.

PPP Poll: 52% of GOP Voters Think ACORN Stole Election for Obama

This is depressing, but not all that surprising.

From a 2005 article of mine:

In 1996, about 9.6% of the public (7.5% of Democrats and 12% of Republicans) thought the manner of conducting the most recent presidential election was "somewhat unfair" or "very unfair." The number skyrocketed to 37% of the public (44% of Democrats and 25% of Republicans) in 2000 following the Florida debacle. By 2004, the number fell to a still worrisome 13.6% of the public holding strongly negative views of American election administration. The gap between the views of Democrats (21.5%) and Republicans (2.9%) remains quite large.
The fact that Republicans were victorious in the 2000 and 2004 presidential elections might drive the large disparity between Democrats and Republicans.28 Consider voter attitudes toward the fairness of the Washington State gubernatorial election in 2004. After a series of recounts and court battles, a Democrat was declared the winner.29 In a January 2005 Elway Poll of Washington voters, 68% of Republicans thought the state election process was unfair, compared to 27% of Democrats and 46% of Independents.30 It is hard to escape the conclusion that views about the fairness of the process are driven, at least in part, by the outcome that recent elections have produced. If that is so, it should not be surprising to see large numbers of Republicans nationally indicating a lack of faith in the election process if the next close election features a Democrat squeaking by to gain the presidency.

"Train Wreck: A Conference on America's Looming Fiscal Crisis"

This interesting conference will take place at USC in January.

"FEC Guts HLOGA Candidate Travel Restrictions: Statement of Paul S. Ryan, Campaign Legal Center FEC Program Director"

See here.
UPDATE: More from WaPo.

"The National Voter Registration Act: Fifteen Years On"

Estelle Rogers has written this ACS issue brief.

The Latest Electionline Weekly

Here.

"Strange Bedfellows: To Weaken Campaign-Finance Law, Starr's Group Defends Edwards Backer"

TPM offers this report.

Pam Karlan Weighs in on CVRA

Following up on this post, Pam Karlan defends the attorneys bringing CVRA challenges.

"Low turnout in Orange County Assembly race rekindles debate on mail-only voting"

The LA Times reports. It ends with this quote: "Although he said he cherishes the 'civic ritual of going to the polls,' he also loved vinyl records, 'but I don't listen to them anymore.'"

Emily's List Issue Invades LA City Council Race

See here.

"Election Expert David Cardwell Dies"

The Ledger brings us sad news.

"The Triumph of Voting Rights in the South"

Bullock and Gaddie's book is now available. The link will also take you to a video interview with the authors.

Has Bad Drafting Made All Marriage Illegal in Texas?

See here.

Another Point of View on the California Voting Rights Act and the Plaintiffs' Attorneys Benefitting from It

In response to this post of mine, Doug Johnson offers these interesting thoughts.

I expect to keep an eye on CVRA claims (and this issue) as lawsuits go forward.

More on the Craig-Bauer Switch

The inside story from Marc Ambinder.

"Nassau ballot count enters third day"

Counting over Thanksgiving? Brings back memories of Florida 2000. UPDATE: More here.

"Politics for Professionals Only: Ballot Measures, Campaign Finance 'Reform,' and the First Amendment"

Dick Carpenter, Jeff Milyo, and John Ross have written this short piece for a Federalist Society publication.

"Requested FEC Ruling Could Preempt Numerous State Laws Curbing 'Robo-Calls'"

BNA reports ($).

"Public Opinion and Election Law"

The following is a guest post from Stephen Ansolabehere and Nathaniel Persily (cross posted):

As part of our national survey of attitudes toward courts and the Constitution performed by Knowledge Networks this past July, we included several items related to election law and voting rights. We wanted to assess public opinion on some contemporary controversies, such as photo ID laws and election-day registration, while also examining classic controversies, such as literacy tests, poll taxes and one person, one vote.

The survey included (among others) the following questions regarding voting rights:

"Below are a list of voting procedures that are or have been used in the United States. We’d like to know whether you would approve of each of the following in your state.

Require that all people show that they can read in order to vote
55% approve; 44% disapprove

Require that all people show photo identification when they vote
84% approve, 14% disapprove

Require that all voters pay a $5 fee
3% approve; 95% disapprove

Allow people to register on Election Day if they can prove their residency and citizenship
62% approve; 37% disapprove"


On the classic controversies: our poll shows majority support (55%) for literacy tests. This might seem surprising, but this figure is consistent with results from two polls conducted by CNN in June 2006 and October 2007, which asked "Do you think people who cannot read or write English should be permitted to vote, or not?" One concern about those earlier polls might have been that using the word English might have primed respondents to think about this issue in the context of the contemporaneous debate over immigration, but our poll, which gets the same results, simply says "Require that all people show that they can read in order to vote."

The same cannot be said for poll taxes, which seem to be almost universally opposed. Only 3 percent support paying a fee in order to vote. Perhaps if the survey had said the fee would be used to pay for elections or public schools (as classic poll taxes did) the figure might be higher, since it seems reasonable to assume that people are generally against abstract fees unconnected to any purpose.

With respect to contemporary controversies, our survey asked about photo ID requirements and Election Day registration. As with most surveys, we found overwhelming support (84%) for photo ID requirements. To be sure, the question did not limit itself to "government issued photo ID," as many of the challenged laws do, but surveys on photo ID generally find substantial support. Unlike some other surveys that ask about Election Day registration (EDR), we added the qualification "if they can prove their residency and citizenship" and 62 percent of respondents supported EDR when so phrased. Adding that qualification might alter the share supporting EDR (as was our unfounded suspicion with the CNN literacy test questions) by capturing some respondents who focus, in particular, on the citizenship requirement and think the question is asking about raising the barriers to voting rather than lowering them.

It has been a while since surveys have asked about one-person one-vote, and redistricting is a topic most respondents might have difficulty understanding. Recognizing these challenges, we sought to gauge general acceptance of one-person one-vote today. In 1966, a Harris Poll asked: "Another decision of the U.S. (United States) Supreme Court was to...rule all Congressional Districts had to have an equal number of people in them so each person's vote would count equally. Do you personally think that decision of the U.S. Supreme Court was right or wrong?" 76% said "right" and 24% said "wrong". In 1969, a Gallup Poll asked: "The U.S. Supreme Court has required states to change their legislative districts so that each member of the lower house and each member of the upper house represents the same number of people. Some people would like to return to the earlier method of electing members of the upper house according to counties or other units regardless of population. Would you favor continuing the present equal districting plan or returning to the earlier plan?" 52% said continue present plan; 23% said earlier plan; and 25% had no opinion.

Our survey asked:
"Do you think all legislative districts in your state should have the same number of people per district or is it okay for some to have more people than others?"
Districts should have equal populations - 32%
It's okay for district populations to differ somewhat - 53%
It's okay for some districts to have many more people than other districts. - 12%

"Currently all state legislative districts have equal numbers of people. An alternative is to have districts with equal numbers of people in one house of the state legislature but give each county one representative in the other chamber, even though counties have different numbers of people."
Which way do you think is better?
It is better to have districts with equal populations in both chambers. 54%
It is better to have one seat for each county in one chamber and equal population districts in the other chamber. 40%

The results suggest majority support for something like the current rule of rough population equality for state legislative districts (as opposed to the strict equality rule for congressional districts), but with a substantial share supporting the "federal model" allowing for county representation in one house of a legislature.

"Hoffman 'Unconcedes' In New York 23; Absentee Count Begins Today"

Ken Rudin reports.

"Lobbyists: Obama's Rules Bring Pain But No Gain"

Eliza's latest.

"Supreme Court ruling could play in 2010 governor's races"

USA Today on the possible impact of Citizens United.

"Obama shakes up counsel's office"

The National Law Journal offers this report. ($)

"Judges Calabresi and Easterbrook Face Off on How to Interpret Statutes"

BLT reports.

AP Story on Attorney's Fees Earned under California Voting Rights Act Challenges

This AP article strikes me as unfair. The entire purpose of one way attorney's fees provisions is to encourage litigation in an important policy area. That lawyers are earning fees means the law is successful. And the fact that the lawyers bringing these cases have been successful means they are doing their jobs, and should be compensated for it.

"Briefs Being Filed in SpeechNow.Org Case Highlight Potential Importance to Campaigns"

BNA offers this report.

"A Better Way: Electronic voter registration could reduce fraud and boost accuracy, confidence"

The Columbus Dispatch offers this editorial.

"In House, Many Spoke With One Voice: Lobbyists' "

The NY Times offers this report, which begins: "In the official record of the historic House debate on overhauling health care, the speeches of many lawmakers echo with similarities. Often, that was no accident. Statements by more than a dozen lawmakers were ghostwritten, in whole or in part, by Washington lobbyists working for Genentech, one of the world's largest biotechnology companies. E-mail messages obtained by The New York Times show that the lobbyists drafted one statement for Democrats and another for Republicans."

"A Serious Challenge to Campaign Laws"

The SF Chronicle offers this editorial.

UT " Money in Politics" Survey Released

You can find links to the survey here. Some findings from a press release on the survey I received via email:

* Fifty-eight percent of respondents say the source of a candidate's campaign contributions are a factor in how they vote, compared to 29 percent who say the amount a candidate raises is a factor.
* Respondents said they would be more likely to vote for a hypothetical U.S. Senate candidate if he received campaign contributions primarily from friends and acquaintances compared to the tobacco industry or trial attorneys. The amount of money the candidate raised had no impact on voter support.
* The three biggest factors influencing how members of Congress vote are campaign contributors, party affiliation and lobbyists, according to respondents. They believe constituents' concerns have the least influence on how members of Congress vote.
* Fifty-six percent of respondents support federal limits on political advertising paid for by corporations, unions and non-profit groups. Most respondents don't believe corporations should have the same rights or the same free speech protections as individuals.
* Respondents had limited knowledge of campaign finance issues, with 51 percent saying they don't know enough about the McCain-Feingold Act to have an opinion.

CU Later

No Citizens United opinion today. The next chance is Dec. 1.

Welcome to the Blogosphere to "State of Elections"

This website of the Election Law Society at William & Mary Law School launches today. According to this post, "Our goal is to cover every state in the union - to examine the particulars of how they're voting, redistricting, and recounting. We recognize the ambition inherent in such a goal and know we can't do it on Day One or without help. So we invite you to help us get there."

As I told the folks thinking about starting this up a few months ago, this is a very ambitious project, one that will require the efforts of a lot of people. But if enough people participate, this could become a very valuable resource. So let's support this new effort.

"Michael C. Dorf Is There a Constitutional Right to Sign a Petition Anonymously?"

Michael Dorf has written this Findlaw column.

Profiles of Bob Bauer

NY Times and Washington Post.

UPDATE: One more (earlier) one, from Politico.

"The Transformation of the Campaign Financing Regime for U.S. Presidential Elections"

I have posted this draft on SSRN. This will eventually appear in a comparative campaign finance volume edited by Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham. It differs from my earlier paper on this topic (in the Karol and Citrin volume), which focused only on the primary campaign season. Here is the abstract:

Since the mid-1970s, the United States system for the financing of presidential election campaigns has been a mixture of private fundraising by candidates, parties, and outside groups and optional public financing for candidates (and for political party conventions). The 2008 presidential election-with its record-breaking $1.8 billion campaign (including an astounding $745.7 million raised by then-Democratic candidate Barack Obama) (FEC 2009) - demonstrated that the current system is in the midst of a major transformation. This chapter explains how the system is changing, offers possible reasons for the transformation, and evaluates the transformation normatively.

Part I shows how the system is changing in four ways. (1) The voluntary presidential public financing system is no longer viable; candidates who opt in do so out of weakness, not strength. (2) A major share of private campaign contributions to presidential candidates in 2008 have come through campaign finance "bundlers" and from micro-donors giving very small amounts via the Internet. (3) Thanks to a U.S. federal law, Bipartisan Campaign Reform Act of 2002 (BCRA), political parties can no longer accept very large campaign contributions ("soft money") from wealthy individuals, corporations, and labor unions to pay for political advertising. (4) Wealthy individuals, corporations, and labor unions have shifted some, though not necessarily all, of the money that used to go to political parties and to "issue advocacy" into outside groups (including so-called "527 organizations").

Part II explains that these four changes have likely arisen from a number of factors including: (1) the failure of the U.S. Congress to update the presidential public financing system, first enacted in 1974; (2) enactment of BCRA and the U.S. Supreme Court’s shifting interpretation of the constitutionality of campaign finance law; (3) the rise of cheap political speech via the Internet; and (4) continued political polarization.

Part III explores normative implications. The potential for quid pro quo corruption of candidates appears to remain low, thanks to a series of laws imposing contribution limits. Sale of access to candidates, however, remains a feature of U.S. presidential elections even post-BCRA. From the standpoint of political equality, the transformation offers a mixed bag with somewhat offsetting effects. Thus, the collapse of the public financing system may have anti-egalitarian effects, but those effects are somewhat militated by the rise of micro-donors. The end of soft money and the rise of outside non-party political organizations in theory could lead to weakened political parties, but continued polarization of the electorate have kept parties thriving even under BCRA and the shifting constitutional ground rules of the U.S. Supreme Court.

Government Dismisses Euclid Appeal

You can find the order here. You can find my earlier coverage of this case, involving the use of alternative voting systems to remedy section 2 Voting Rights Act violations, here.

"'Post-Racial' America? - A Voting Rights Report"

The NAACP LDF has issued this press release about this new report. From the press release:

First, "Post-Racial" America? Not Yet examines the "post-racial" argument made in Northwest Austin Municipal Utility District Number One v. Holder (MUD), a recent unsuccessful constitutional challenge to Section 5 of the Voting Rights Act, a core provision that guards against voting discrimination where it has been most severe. In MUD, the plaintiff argued that the election of President Obama rendered Section 5 no longer necessary. This report contrasts the plaintiff's argument with the more than 16,000-page record of ongoing voting discrimination considered by Congress when it voted to renew Section 5 in 2006.

Second, the report demonstrates how President Obama's victory provides important evidence of great progress, while also illustrating the ongoing salience of race in American democracy. Exit polls from the 2008 Presidential Election show that a record 95 percent of African Americans, 67 percent of Latinos, and 62 percent of Asian Americans voted for President Obama nationally, compared to only 43 percent of white voters -- the only racial group that did not cast a majority of votes for President Obama.

I look forward to reading this report. It is very interesting that the press release refers to NAMUDNO as an unsuccessful constitutional challenge to section 5. Though the constitutional argument failed, the ridiculously weak statutory argument succeeded, and the opinion is chock full of dicta that should make voting rights advocates cringe. Perhaps this is another example of winning by losing, or at least marketing a loss as a win.

Marc Elias Takes over for Bob Bauer as Head of Perkins Coie Political Group

See here ($). The firm's Judith Corley becomes the lead DNC lawyer.

Election Law Journal 8:4 Now Available: Preview of ELJ 9:1

You can read the table of contents here and I've also reprinted it below.

Look for ELJ 9:1 in January, featuring Douglas Spencer and Zachary Markovits on an emprical study of lines at polling places, Justin Levitt on the law surrounding lines at polling places, Seth Hill, Michael Herron and Jeffrey Lewis on factors explaining Obama's victory in 2008, and book reviews by Ray La Raja and Mark Rush.

Here are the items in ELJ 8:4

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

ORIGINAL ARTICLES
Where Can College Students Vote? A Legal and Empirical Perspective
Richard G. Niemi, Thomas H. Jackson, and Michael J. Hanmer

Political Money
Hanoch Dagan

Barack Obama, Margarita Lopez Torres, and the Path to Nomination
Ellen D. Katz

BOOK REVIEWS
Ambition Must Be Made to Counteract Ambition, reviewing Richard W. Painter, Getting the Government America
Deserves: How Ethics Reform Can Make a Difference
Frank Anechiarico

Angels with Dirty Faces: Rehabilitating Parties and Partisanship in Political Theory, reviewing Nancy L. Rosenblum, On the Side of the Angels: An Appreciation of Parties and Partisanship
Gerald M. Pomper and Marc D. Weiner

Congressional Elections Under a Microscope, reviewing David B. Magleby and Kelly D. Patterson, eds., The Battle
for Congress: Iraq, Scandal, and Campaign Finance in the 2006 Election
Jennifer A. Steen

RECENT CASES AND MATERIALS
Summary

In re Contest of General Election Held on November 4, 2008, for Purpose of Electing a U.S. Senator from State of Minnesota, 767 N.W.2d 453 (Minn. 2009)

Caperton Loses Again, This Time Without Justice Benjamin

Howard rounds it up.

Craig Out, Bauer In, as White House Counsel

Here is a NY Times report. Here is a statement from President Obama. Here is Craig's letter of resignation, effective Jan. 3.

I have known Bob for many years and I have the greatest respect for him. He is one of the smartest people I know, with an apparently unlimited supply of energy and intellectual curiosity. His is also passionate about the principles in which he believes and loyal to his friends. The country is stronger to have him serving. Good luck Bob!

UPDATE: Marc Ambinder gets these quotes from a "senior administration official":

"Bob's expertise in election law isn't just relevant so we can write great briefs in litigation. As we enter 2010, having clear rules of the road on what the White House and its staff can and cannot do to help Democratic candidates will become a critical aspect of the White House Counsel's job -- and there's no lawyer in America who knows that better than Bob," a senior administration official said. "Such skill is even more critical as we approach 2012 -- and -- here's the wild card -- if the Supreme Court does major violence to the campaign finance regulation regime (as most observers expect by June), then deciding how to try to rewrite those laws, or what to do in the wild west regime that will replace current law, will be a critical task. And who better to have on point than Bob Bauer."

"Calling the Filibuster Bluff"

Renee Loth has written this Boston Globe column.

"Assessing California's Hybrid Democracy"

The California Law Review has posted the final version of my Essay here. It begins:

In the early part of this decade it appeared that California voters stood to use the devices of direct democracy - the initiative, referendum, and the recall - to take a more major role in crafting the state's public policy. After all, in 2003 California for the first time recalled a sitting governor, Gray Davis, and replaced him with actor-bodybuilder Arnold Schwarzenegger. By the end of the decade, however, despite the promise of "hybrid democracy," it appears that voters remain the junior partners in governance in the Golden State. Schwarzenegger's boldest attempt to bypass the legislature and go directly to voters came in a special election he called in 2005. Though Schwarzenegger raised and spent $56 million supporting his package of measures (out of a total of an astounding $300 million spent on ballot measure activity in that election, all of the measures that Schwarzenegger backed went down to defeat, some by large margins.

The 2005 experience was not isolated. One lesson of this decade is that the devices of direct democracy remain too blunt and expensive as tools for anything but interstitial governance. From 2002 through 2008 voters were asked to approve 63 ballot measures - 43 voter initiatives and 20 ballot measures proposed by the legislature. California voters approved 18 of the 20 legislative ballot measures (the large majority of them bond measures), a 90% approval rate. But they approved only 14 of 43 initiatives, a rate of 32.5%, lower than the rate in past decades. Proponents and opponents spent over $1.3 billion on ballot measure-related activity in California in the 2000-2006 period. Despite this flurry of activity, California's governance appeared in shambles for much of the decade, with the biggest problem being the inability of the California legislature to approve a state budget under the state constitution's tough rule requiring two-thirds approval of budgets, leading the state in 2008 to the verge of financial collapse. Moreover, the initiative process proved especially divisive in 2008 when California voters narrowly approved Proposition 8, a measure amending the California Constitution to bar gay marriage.

This review essay considers the state of hybrid democracy in California through an examination of three worthy books: Daniel Weintraub, Party of One: Arnold Schwarzenegger and the Rise of the Independent Voter; Center for Governmental Studies, Democracy by Initiative: Shaping California's Fourth Branch of Government (Second Edition), and Mark Baldassare and Cheryl Katz, The Coming of Age of Direct Democracy: California's Recall and Beyond. The essay concludes that despite the hoopla about Governor Schwarzenegger as a "party of one" and a new age of "hybrid democracy" in California, the pattern in the 2000s appears mostly the same as that of past decades: California voters have occasionally passed important measures through the initiative process, but for the most part public policy in the state continues to be crafted by the state legislature and the governor. The best hope for increased "people power" through the initiative process is for initiative proponents to focus on good government measures that assure a better legislative process, such as open primaries, redistricting reform, and budget reform.

"Common data format could streamline elections"

That's the lead story in the new Electionline Weekly.

"What Are the Odds of 0 Doug Hoffman Votes in Three Different Polling Places?"

Interesting.

"Washington, D.C.: Campaign Contributions Greasing the Wheels for New Highway Construction?"

U.S. Pirg has issued this press release about this new report.

" The LBJ School's Center for Politics and Governance To Examine 'Money and Politics' at Fall Forum"

See here about this Nov. 16 conference.

"Can There Be An 'Undeclared' Canon of Statutory Interpretation?"

Anita Krishnakumar offers this blog post on her forthcoming William and Mary article on the Holy Trinity Church case and what she terms the "unique national institution" canon.

I read Anita's article in draft last summer and I highly recommend it as interesting and provocative. I'm also interested in the broader question Anita raises in her blog post. My forthcoming Democracy Canon piece deals with a canon recognized by state courts but mostly not recognized (though not rejected) by federal courts. Chris Elmendorf's response to my piece expresses skepticism about extending the canon to federal courts, and I'm working on a reply.

Pierce O'Donnell Reply Brief in Conduits Contribution Ninth Circuit Appeal

You can read it here.

"Did Hoffman Concede Too Soon?"

Political Wire reports that "It appears the special election race in New York's 23rd congressional district is not yet over. "

On Election Night I wrote: "I am sure upstate NY officials are now muttering the election administrator's prayer, hoping that Hoffman concedes to avoid the scrutiny that will come if it remains so close. UPDATE: Election administrator's prayer answered as Hoffman concedes."

Let's see if there's an un-concession. My guess is that there won't be, because the absentee ballots are likely to break for Owens (because many were likely sent in before Scozzafava left the race).

"Gerrymandering, Pure and Corrupt"

The NY Times offers this editorial.

"Earmarks' cash flow lifts firms, lobbyists, lawmakers"

The Boston Globe offers this report.

"Acorn Sues Over Funding Vote in House"

The NY Times offers this report.

"Twitter, Internet undermine Canada election rules"

Reuters reports.

"Lost Home? Lost Vote?

Scott Novakowski blogs.

What Happened to Norm Eisen's Blog Post on Lobbying?

A recent blog post at the White House blog on its lobbying policy got a lot of attention recently, including in the NY Times and the BLT. But, as has been pointed out to me, the link does not appear to work. It is not clear whether this was an intentional taking down of the post for political/policy reasons, or just an administrative snafu. Inquiring minds want to know.

UPDATE: The link is now working again. I've reprinted the text of the post below the fold.

A Washington that is More Reflective of All of America
Posted by Norm Eisen on November 09, 2009 at 04:10 PM EST

Just a quick post to report on a meeting today with a group of lobbyists and others who currently chair Industry Trade Advisory Committees (ITACs). The group had objected to the Administration's new policies barring the appointment (and reappointment) of federally registered lobbyists to agency boards and commissions. Although we have previously addressed their views here and here, we feel it important to meet with those with whom we disagree to discuss their concerns face to face. Much of the discussion focused on the arguments offered in the letter the group sent us (pdf) and our response letter (pdf). Click here (pdf) for the list of attendees.

We explained to the ITAC chairs that this issue is not about the few corrupt lobbyists or specific abuses by the profession, but rather concerns the system as a whole. For too long, lobbyists and those who can afford their services have held disproportionate influence over national policy making. The purpose of the President’s agenda to change the way business is done in Washington is to level the playing field to make sure that all Americans and not just those with access to money or power are able to have their voices heard and their concerns addressed by Washington.

We explained that in deciding to limit the ability of lobbyists to serve in government positions, including as members of agency advisory boards and commissions, we considered various arguments and counterarguments. We weighed the options, and considered the alternatives. In the end, we decided that while lobbyists have a right to petition the government, it would best serve the interests of a fairer and more representative democracy if we limited their ability to do so from special positions of privileged access within the government.

The result will be a Washington that is more reflective of all of America. We have already begun the process of recruiting new voices to advise the government through these agency boards. We believe small- and medium-sized business owners will be excited by the opportunity to help serve their country and advocate for their interests.

To make it even easier for those with valuable insight and expertise to offer to join this process from outside the Beltway, the Administration is working to develop tools to utilize internet technologies to make federal advisory committee proceedings accessible online. For example, the most recent meeting of the President's Council of Advisors on Science and Technology (PCAST) was watched online by 5000 people. This Administration is committed to seeking out those voices and bringing the change they represent into the decision making process in Washington.

We explained this to the ITAC chairs and asked for their help in reaching out to broaden and diversify these boards and commissions. We informed them that while we will always seek ways to improve good policies, we do not intend to rescind this decision. The ITAC chairs, although expressing their disagreement, are willing to assist in finding qualified replacements and we thank them for their commitment to working together to make the system work better for everyone.

Finally, we also replied to a letter from the American League of Lobbyists on this subject today-ALL's letter is here (pdf) and our reply is here (pdf).

Norm Eisen is special counsel to the president for ethics and government reform

Robocalls

The Aiken Standard offers Ex-GOP official admits part in robo-calls scam.

Minnesota Public Radio offers Attorney General Defends Law Against 'Robocalls'.

"Candidates Pour More of Own Cash into Races"

USA Today offers this report.

"GAB delays vote on system"

See this news from Wisconsin.

A Dunn-Bauer White House Switch?

ABC News: "There have been discussions at the White House about Dunn’s husband, Bob Bauer, replacing White House counsel Greg Craig. Today's move presumably makes that switch more likely."

"Court Won't Hear Case With Conflict Question"

AP offers this report, which begins: "The Supreme Court will not review an $18 million verdict won by a lawyer who served as a co-chairman of the trial judge's re-election committee."

"New ID law didn't greatly hamper voters"

The Salt Lake Tribune offers this report.

No Opinions in Citizens United Today

The next opportunity is Monday, November 16.

Covington Election Law Videos

Video presentations to Corporate Board Member magazine:

Rob Kelner presentation regarding pay to play

Bob Lenhard presentation regarding political fundraising by executives

"Election Spending: Reformers On Flood Watch"

Imagining ($) a post-Citizens United world. See also this ACS Issue brief on the case by Jeffrey Clement.

"On the line: State law curbing 'robocalls'"

The Star Tribune offers this report.

"Lobbyists sue to block campaign-finance ballot measure"

The Sacramento Bee offers this report.

"U.S. Supreme Court could be next stop for R-71"

The Seattle PI offers this report.

"Defending Chief Justice Roberts"

Ken Klukowski has posted this Citizens United-related essay at TownHall.com.

"How to build a better House"

Jeff Jacoby has written this Boston Globe column. Thanks to Michael Warnken for the link.

"Voting Equipment and the Way Elections Are Run"

See these letters to the editor.

"Haridop to senators: Beware consequences of redistrict amendment"

The latest from Florida.

Bad Ballot Design Apparently Leads to Almost 10% Undervote on Washington State Initiative

See here. The blog post reports that " I-1033 opponents had raised alarms that this poorly designed ballot layout might depress the vote on the measure in our state's most populous and anti-1033 county, causing many voters to miss the question entirely. And now that a large chunk of the results are in, it is clear that their fears were well founded."

I wonder if the opponents thought to sue over the ballot design. I think pre-election lawsuits are the only way to effectively deal with a problem like this and deter bad ballot design in future elections.

Thanks to Dan Smith for the pointer.

"Campaign contribution caps gains broad support"

The Salt Lake Tribune offers this report. More on the Utah commission here.

"Provisional ballots could change IRV outcome in Aspen"

See here.

"SCHUMER ANNOUNCES ELECTION ASSISTANCE COMMISSION HAS AGREED TO TRANSLATE VOTER REGISTRATION FORMS INTO ASIAN LANGUAGES BEFORE START OF 2010 PRIMARIES"

See this press release.

"NY village gets new voting system to aid Hispanics"

AP offers this report. My earlier coverage of the Port Chester case is here.

Stanley Kutler on Wisconsin Judicial Election Controversy

See here.

Cert Petition Filed in Washington Referendum Signer Disclosure Case

You can read it here. UPDATE: More from Ballot Access News on other suits raising similar issues.

"Low Turnout in Virginia: It's Also About Felon Disenfranchisement"

Tova Wang blogs.

"Law change means Vt. must move up primary"

The Times Argus offers this report, which begins: "A new federal law will require Vermont to set an earlier primary election date, just as a host of Democrats are clamoring to replace the retiring Republican Gov. James Douglas."

"Knox would limit contributions"

The Philadelphia Daily News offers this report.

Washington State Referendum 71 Appears to Be Approved

See here. The lawsuit over the referendum petition signer identity continues, however. I'll be talking about that on NPR's "On the Media" this weekend. UPDATE: This segment appears to be off or postponed.

Judge Awards Port Chester Its Preferred Remedy of Cumulative Voting in Voting Rights Act

Details to come. UPDATE: Here is an early report.

SECOND UPDATE: You can read the Court's order, which promises a full opinion later, here.

Rep. Israel Moves "Democracy Index" Legislation

See here. Will this be a bipartisan effort? Though Trevor Potter is quoted, I am waiting to see if there will be Republican co-sponsors. (I talk about the general partisan valence of the Democracy Index proposal in this forthcoming review of Heather Gerken's Democracy Index.)

"California Legislature tries to block steep cut in pay and perks"

The LA Times offers this report.

Now Available: Sholk's Updated "Guide to Election Year Activities of Section 501(c)(3) Organizations"

You can download it here.

"Justice at Stake Hails Public Financing Breakthrough in Wisconsin"

Justice at Stake has issued this press release. The bill was supported by the state Supreme Court justices.

More here, here, and here.

Trying to Get Around California's Rule on Amending Initiatives

Three years and about 8,000 posts ago (!), I blogged on this interesting feature of a bill passed by the California state legislature. Yesterday the California Court of Appeal ruled on the issue:

The trial court found that section 9 of Senate Bill 1137, which provides for submission of the bill to the voters at the next statewide election if any part of it is found to be invalid, was not severable from the other sections of the bill and was thus equally ineffective. Defendants submit that this approach "lack[ed] logi"” because it "appl[ied] section 9 to negate section 9" (italics omitted), and plaintiffs do not challenge section 9 on the ground cited by the trial court.
Defendants argue, and we agree, that section 9 provides in effect for a referendum because it presents the voters with a measure the Legislature has already enacted (see Jahr v. Casebeer (1999) 70 Cal.App.4th 1250, 1259 [an initiative allows voters to propose new legislation; a referendum permits voters to reject legislation already adopted]; Cal. Const., art. II, s 9, subd. (a) ["referendum is the power of the electors to approve or reject statutes or parts of statute"”]), and plaintiffs do not contend that the requirements for a referendum have been satisfied (id., art. II, s 9, subd. (a) [referendum power does not extend to urgency statutes]; id., art. II, § 9, subd. (b) [a referendum is placed on the ballot by the voters, not the Legislature; petition from specified number of electors must be filed within 90 days of statute‟s enactment]). Defendants observe that the Legislature has the power to submit legislation to the voters (Elec. Code, § 9040) but,under California Constitution, article 10, section (c), an initiative cannot be amended except as permitted by its terms or "by another statute that becomes effective only when approved by the electors." Senate Bill 1137 violates this constitutional provision because it took effect immediately as an urgency measure, even though its enforcement was promptly enjoined.13 Section 9 is therefore invalid along with the rest of Senate Bill 1137.

"Instant Runoff Voting on Election Day 2009: Wins, Losses and the Long-Term Trajectory of Reform"

Rob Richie blogs.

"Uncounted Ballots: A Measure of Vulnerability"

A very useful post from Ned Foley using the recently released EAC data.

"FEC votes to render no opinion on Brunner campaign plan"

And it was not because of a partisan deadlock.

Democracy 21 on Citizens United and the Meaning of "Corruption"

See here.

"EAC releases data from 2008 presidential election"

See here.

"Getting to Reform: Avenues to Constitutional Change in California"

You can watch the webcast of very interesting panels at this recent event on a possible constitutional convention in California.

NAMUDNO Consent Decree Signed by Judges

So any future challenge to section 5's constitutionality will come in a different case.

"Is America Ready for Popular Election of the President? A Debate on the National Popular Vote Movement"

ACS is hosting this event in DC on November 17. I will post a link to the video after the event.

"Election Reform in DC: A Model for the Progressive Administration of Elections"

Steve Carbo blogs.

Next Possible Dates for Citizens United Decision: Nov. 10 and 16

So reports AP (via Political Activity Law).

"A constitutional convention isn't the only route to reform"

John S. Caragozian, Karl Manheim and Don Warner have written this very interesting LA Times oped on the legal issues surrounding a possible California constitutional convention.

It also includes this bit of news: "Here at Loyola Law School, Los Angeles, we along with several local groups are coordinating a high-level symposium to be held in the weeks before the 2010 election, in which journalists, scholars, elected officials and other leaders will discuss the political and legal practicalities of a constitutional convention and other reform options (go to calconst.org for more information). We believe it is time to move the discussion from the general to the specific. The details of Repair California's initiatives, along with similar initiatives filed by other groups, should be carefully examined."

Ranked Choice Voting in Minneapolis, St. Paul

Star Tribune: "Now comes the hard part. Minneapolis voters were apparently unfazed by the debut of ranked-choice voting Tuesday, but the inherent mathematical complexity of the new system will start unfolding this morning. Starting at 11 a.m., and potentially continuing for more than a month, city election judges and staff members will begin methodically hand counting every ballot cast Tuesday."

Meanwhile, in an emailed press release, "Fair Vote Minnesota today called Saint Paul's approval of Instant Runoff Voting 'a win for the people of Saint Paul.'"

"Reformers Urged Justice to Appeal Case But SG Said Decision Was FEC's to Make"

BNA offers this report ($) on EMILY's List.

"Political Foes Team Up To Improve Voter Registration"

NPR offers this report.

NY-23: Break Out Your Copy of Goldfeder on NY Election Law

Despite reports that Democrat Owens is in the lead in the NY-23 race over the conservative Hoffman, two factors mean the race might not be called tonight: 10,000 absentee ballots were sent out, and about 5,800 were returned. (Many of those votes could be for Scozzafava, who dropped out very recently. Those votes will benefit Owens.) Additionally, according to this report, there were some voting machine malfunctions in Fulton County, and there was a switch to paper ballots---ballots which have not been counted. The voting machines have been impounded.

I am sure upstate NY officials are now muttering the election administrator's prayer, hoping that Hoffman concedes to avoid the scrutiny that will come if it remains so close.

UPDATE: Election administrator's prayer answered as Hoffman concedes.

"Prisons and City Elections"

This Iowa Public Radio report is described as follows: "Iowans go to the polls for municipal elections. In the northeastern Iowa town of Anamosa, voters have changed the way they elect their city council. That's because one council member's constituents consisted almost entirely of prison inmates."

"GOP trails in money chase"

Jeanne Cummings reports for Politico.

"What's New? Lacking Evidence, Conservatives Again Stoke Voter Fraud Fears"

Zack Roth's TPM post should not be missed.

"After identity tangle at the DMV, she'll keep her vote to herself today"

Petula Dvorak has written this WaPo column on Virginia's voter identification requirements.

Demos Webcast on National Popular Vote

See here.

"The Past, Present, and Future of Election Law: A Symposium Honoring the Work of Daniel Hays Lowenstein"

I am delighted to announce this festschrift honoring the work of Dan Lowenstein. A bit of description:

The Past, Present, and Future of Election Law: A Symposium Honoring the Work of Daniel Hays Lowenstein
Date/Time : 01/29/10
Location : UCLA School of Law, Room TBA
Description :

Please save the date for an all-day symposium bringing together leaders in the field of Election Law from law, political science, economics and history to honor the pioneering work of Daniel Hays Lowenstein, who is retiring from UCLA School of Law to begin service as the founding director for UCLA's Center for the Study of Liberal Arts and Free Institutions. Papers from the conference will be published in the UCLA Law Review and the Election Law Journal.

More details at the link above. Thanks to the sponsors of this event: The UCLA School of Law, the USC-Caltech Center for the Study of Law and Politics, the UCLA Law Review, the Election Law Journal, and the Institute of Governmental Studies at UC Berkeley.

I hope to see many of you at this important and exciting event.

"Lobbyists Terminating Their Federal Registrations at Accelerated Rate"

Capital Eye reports. More from BNA.

John Fund on Potential Vote Fraud in New Jersey, and Media Matters on John Fund

I told you to keep an eye on this, and now John Fund does not disappoint. Nor does Media Matters, fact checking Fund's appearance on Glenn Beck.

A Challenge to State Anti-Robocall Legislation as Being Preempted by Federal Campaign Finance Law

This could be very interesting.

"Targeting Election Fraud Incentives: 'State Solicitation Of Registration' Laws Are Constitutional"

The Washington Legal Foundation has issued this opinion letter.

SG Will Not Petition for En Banc in EMILY's List Case

Lyle Denniston has the details. The full D.C. Circuit could still order it sua sponte (on its own motion). And the SG may still choose to petition for cert. in the case.

Will Senator Schumer Be Able to Deliver Moderates in His Own Party on Voter Registration Modernization?

That's not the focus of this Roll Call profile of the Senator, but it is the question that was going through my head.

Thinking About Third Parties Before Election Day

Tomorrow's election day features two important races involving third party/independent candidates: Doug Hoffman, a Conservative Party candidate in the NY-23 race, and Chris Daggett, an independent in the New Jersey governor's race.

John Anderson editorializes on the NJ race, and says that "[t]he true spoiler in this race -- and any other election with one winner and more than two candidates -- is a plurality-voting rule in which candidates can win without a majority of votes." He advocates instant runoff voting. (More from Rob Richie on the governors' races.)

Ross Douthat celebrates the rise of these third party candidacies in the NY Times.

Frank Rich sees the rise of Hoffman in the NY-23 as likely benefiting Democrats nationally.