Election Law

Regular Blogging to Resume in September

I'm off to New Zealand, Australia and Hawaii for the rest of the month of August. I'll be giving talks at the University of New South Wales (Sydney) and Griffith University (Brisbane), meeting with people at the Australian Electoral Commission, Marian Sawer of ANU, and Andrew Geddis in New Zealand. This is also part family vacation.

Though I may post once in a while, regular blogging will resume in September. Enjoy the rest of your summer.

"Ballot Issue is Split in Two"

The Sacramento Bee offers this report. [Disclosure: I am working with proponents of Prop. 62.]

Two By Overton

Spencer Overton has posted Restraint and Responsibility: Judicial Review of Campaign Reform, Washington & Lee Law Review, Vol. 61, p. 663, May 2004. The abstract:

The First Amendment doctrine governing campaign finance law allows judicial outcomes to turn on often unstated political assumptions about the appropriate role of money in campaigns. As illustrated by the conflicting opinions of different U.S. Supreme Court Justices in McConnell v. FEC, current narrow tailoring and substantial overbreadth tests provide inadequate guidance and compel judges to rely on their own political assumptions in balancing the need for regulation against the right of free speech. Judges skeptical of campaign reform err on the side of protecting speech, while judges supportive of reform lean toward tolerating regulations said to prevent corruption.

To resolve the conflict and fill the void in current doctrine, this Article identifies four democratic values that judges should balance in deciding whether campaign finance laws restrict too much protected speech: democratic deliberation, widespread participation, individual autonomy, and electoral competition. While political assumptions may influence judicial balancing of these values, this new approach is a better compromise of sensitivity to context, consideration of substantive democratic values, and judicial guidance than the alternatives. Honest exchange about how courts should balance relevant values in particular contexts, rather than a glossing over of tough issues with abstract rhetoric and mechanical categories, will allow for a more coherent doctrine.

He has also posted The Donor Class: Campaign Finance, Democracy, and Participation, forthcoming University of Pennsylvania Law Review:

This Article uses the U.S. Supreme Court's recent opinion in McConnell v. FEC to argue that the law should play a central role in reducing the impact of disparities in wealth on political participation.

In upholding large parts of the Bipartisan Campaign Reform Act, the Court in McConnell acknowledged the adverse impact of concentrated wealth on widespread democratic participation and self-government. Even in the aftermath of the reforms upheld in McConnell, however, a small, wealthy and homogenous donor class continues to make relatively large contributions that fund the bulk of American politics. Less than one percent of the U.S. population makes financial contributions over $200 to federal candidates, and these contributions represent the vast majority of funds that candidates receive from individuals. Of those who contribute over $200, approximately 85 percent have household incomes of $100,000 or more, 70 percent are male, and 96 percent are white. This donor class effectively determines which candidates possess the resources to run viable campaigns.

Instead of preventing "corruption" or equalizing funds between candidates, this Article proposes that the primary goal of future reforms should be to reduce the impact of wealth and empower more citizens to participate in the funding of campaigns. On average, candidates should receive a larger percentage of their funds from a greater number of people in smaller contribution amounts. After responding to "class-blind" campaign reform opponents' claims that the impact of wealth on democratic participation warrants minimal concern, this Article examines concrete proposals. Reforms like matching funds and tax credits for smaller contributions, combined with emerging technology, would enable more Americans to make contributions and would enhance their voices in our democracy. Consistent with the Court's approach in McConnell, reforms that empower smaller contributors prompt "candidates and political committees to raise funds from a greater number of persons" and "tangibly benefit public participation in political debate."

"Fund Raising Empowers Incumbents"

The Milwaukee Journal-Sentinel offers this report.

New election law articles

Tony Corrado has posted Party Fundraising Success Continues Through Midyear.

Justin Driver has published "Underenfranchisement: Black Voters and the Presidential Nomination Process, 117 Harvard Law Review 2318 (2004) arguing that "Iowa's and New Hampshire's primacy in the presidential nomination process could be challenged under section 2 of the Voting Rights Act as the process underenfranchises black voters."

Beth Garrett has published "The Impact of Bush v. Gore on Future Democratic Politics," in The Future of American Democratic Politics: Principles and Practices (Pomper and Weiner eds. 2003) and "Teaching Legislation: A Conversation," 7 New York University Journal of Legislation and Public Policy 11 (2003-2004).

Grant Hayden has published "The False Promise of One Person, One Vote," 102 Michigan Law Review 213 (2004).

Heather Lardy has published "Is the a Right Not to Vote?, 24 Oxford Journal of Legal Studies 303.

Expensive Redistricting Litigation in Georgia

See here.

" Elections watchdogs nervous over vulnerable electronic voting"

The Florida Sun-Sentinel offers this report. Thanks to Politicalwire.com for the pointer.

More on the Race of Those on Florida's Felon Disenfranchisement List

See here.

Persily on Redistricting Issues

You can find some very helpful material on redistricting, including some Power Point slides on Vieth, from Penn Law Professor Nate Persily at this link.

If Kerry Wins, Mass.'s Republican Governor Won't Pick Replacement

See this Boston Globe report.

Bauer on the Upcoming BCRA "As Applied" Challenge

See here. My earlier analysis can be accessed at this link.

"Another Recount Mess? Pennsylvania Can Be the Next Florida"

Jim McTague of Barrons offers this column. Thanks to Steven Sholk for the link.

"Plan to Ease Voter Registration for Spanish Speakers Stalled; Translated Forms Still Not Available on FEC Website"

The Washington Post offers this report.

Getting Out the Vote at Work

See this report from HR Magazine.

"Unintended Campaign Consequences"

The Washington Times offers this report.

"Democrats blast GOP lawmaker's 'suppress the Detroit vote' remark"

A.P. offers this report.

California Court of Appeal Rules in Open Primary Separate Vote Case

The opinion is here. Because I am involved in the case, I won't comment further for now. UPDATE: Here is the Sacramento Bee story on the decision. A.P.'s story is here.

"Three Campaign Reform Myths"

Fred Lewis offers these thoughts in the Texas Observer.

Issacharoff and Karlan on Larios and Vieth

Pam Karlan and Sam Issacharoff have posted Where to Draw the Line? Vieth v. Jubelirer, Cox v. Larios, and Judicial Review of Political Gerrymanders (forthcoming University of Pennsylvania Law Review). Here is the abstract:'

A striking feature of the post-2000 redistricting is not only the continued - indeed, ever-increasing - vigor of partisan line drawing, but the array of doctrinal tools litigators and courts have invoked in attempts to rein it in: Article I; the First Amendment; the equal protection clause of the Fourteenth Amendment in a wide range of flavors; the Voting Rights Act of 1965; and a variety of state-law principles.

We offer a preliminary reaction to the Court's decisions in Vieth v. Jubelirer, 124 S.Ct. 1769 (2004), and Cox v. Larios, 124 S.Ct. 2806 (2004), that places those decisions in the broader context of the Court's failure to confront ends-oriented redistricting practices. In Vieth, four justices declared claims of excessive partisanship nonjusticiable. And yet, three of those justices were soon part of an eight-Justice majority that agreed in Larios to summarily affirm a lower court decision striking down a plan on the grounds that relatively small population deviations were constitutionally impermissible because they reflected blatantly partisan protection of Democratic incumbents while undermining Republican-held seats.

Our central claims are two-fold. First, no matter how difficult judicial review of political gerrymandering claims may be, it is impossible actually to render such claims nonjusticiable. The availability of a range of unavoidable doctrinal claims means that a significant number of the partisan gerrymanders that courts find constitutionally offensive – whatever that term means, and whether it even has any agreed-upon meaning – will come before courts, and lack of candor about what courts are doing may carry its own costs.

Second, the treatment of political gerrymander cases as a species of antidiscrimination claim obscures a central issue of democratic theory. The Supreme Court's initial refusal to enter the political thicket rested on its view that malapportionment suits challenge "not a private wrong, but a wrong suffered by [the state] as a polity." The Warren Court Reapportionment Cases responded by declaring that malapportionment claims "are individual and personal in nature." Ironically, both courts were half right. Claims of malapportionment are really not individual rights claims; they are claims about governmental structure. And yet, these claims are especially appropriate for judicial review. Forty years of doctrinal development has failed to take into account this central point. Partisan gerrymandering claims are treated as an assertion that a political party has been unfairly denied some number of seats. But given the near-universal practices of single-member legislative districts and incumbent protection, partisan gerrymandering cases seek essentially a reallocation of safe seats. The Court's recent opinions ignore almost entirely the question whether judicial intervention should be directed at entrenchment itself, rather than the question of who gets to be entrenched. If the Court's intervention is prompted by these latter sorts of claims, it may simply exacerbate the pathologies of our current redistricting process.

"E-Voting Critic Issues Hacking Challenge"

The Washington Post offers this report. Thanks to Karl Manheim for the pointer.

"Fla. Elections Officials Find 2002 Data"

A.P. offers this report.

Nader Ballot News

Knight-Ridder offers Democrats to Challenge Nader Petitions (this in Pennsylvania). In South Carolina, the Charotte Observer offers Groups in S.C. Attack Petitions Favoring Nader. A.P. offers Nader Files Suit to Gain Ballot Spot in Michigan. Thanks to readers for passing along these links.

WSJ Editorial on 527s and Democrats

See here.

Washington Post articles on DNC Independent Spending and 527s Supporting Kerry

See here and here. The New York Times also offers this report on Democratic Party fundraising.

Texas redistricting filings in Supreme Court now available

I have posted the five filings here; here; here; here; and here. Thanks to J.J. Gass for sending them along.

More Florida Voting Concerns

NPR offers this audio report entitled "Floridians Get Pre-Affiliated Voter Forms." Here is the summary: "When a group of new Americans left their naturalization ceremony in Jacksonville, Fla., last month, they were handed voter registration forms that had already been marked in ink for the Republican Party. NPR's Phillip Davis reports."

Texas Files Response in Supreme Court to Texas Redistricting Suit in Supreme Court

A.P. has the details here. Thanks to Ed Still for the pointer. If anyone has the document or a link to it, let me know and I'll link or post it.

"Democrats Pushing for Voting Reform"

The Hill offers this report.

WRTL BCRA Lawsuit May Be Heard as Early as August 12

BNA reports here (paid subscription required) that "The Federal Election Commission has agreed to a fast-track schedule that would allow a federal court to take up by Aug. 12 a challenge to restrictions on political advertising linked to the U.S. Senate race in Wisconsin." My earlier coverage is here and here.

"Ryan Pulls Name Off Illinois Senate Ballot"

See here.

Three from the Wall Street Journal

See Democrats Tap a Rich Lode: Young, Well-Off Social Liberals; Political Contributors Step Up to the Plate; and this editorial on Ralph Nader being "Banned in Boston."

Ohio Punch Card Trial Postponed until After Election

A.P. offers this report. I expect Dan Tokaji will have more coverage later today here. UPDATE: Dan Tokaji's post is now up here.

In somewhat related news, Roll Call (which is evidently free this week to non-subscribers) offers Paper Ballot Advocates Plan Ohio Expert Team.

"Lawyers Study How to Protect, Promote, Rights of Voters"

Law.com offers this report. Thanks to Steven Sholk for the pointer to this and other law.com and Wall Street Journal articles today.

"Florida's Bad Record on Voting Records"

The New York Times offers this editorial. See also this Washington Post report.

"A Delegate, A Fund-Raiser and a Very Fine Line"

The New York Times offers this report, which begins: "Harold M. Ickes is a founder of an organization created to help defeat President Bush this fall, a group that he emphasizes operates wholly independently of the campaign of Senator John Kerry and the Democratic National Committee. But that has not stopped him from courting some of the Democrats' wealthiest donors here at the Four Seasons, a nexus of party operatives, Kerry campaign officials and friendly celebrities gathered for the party's convention this week. In a luxurious suite where guests nibble on chocolate ganache tarts and sip espresso, he asks them to give and give more."

Public Attitudes Toward Felon Disenfranchisement Laws

Jeff Manza, Clem Brooks and Christopher Uggen have written "Public Attitudes toward Felon Disenfranchisement in the Untied States ", 68 Public Opn. Quarterly 275 (2004). A snippet: "For all categories of felons who are not currently in prison, relatively large majorities (betwen 80 percent in the case of generic ex-felons and 52% in the cae of former sex offenders) favor enfranchisement. Additionally, we find evidence that between 60 and 68 percent of the public believes that felony probationers....should have their voting rights restored."

More on Electioneering Communications Lawsuit

See this A.P. report. Note the quote from Floyd Abrams, one of the plaintiffs' attorneys in McConnell:

Floyd Abrams, a First Amendment lawyer who also challenged the McCain-Feingold law before the Supreme Court, said Wisconsin Right to Life will have a tough case to make.

"Obviously, the government would argue it's already been decided," said Abrams, who is not involved in this case. "But by focusing on a particular ad in a particular place, there's at least a possibility that the courts might say that we didn't really mean there were no cases in which the 30- and 60-day provision was immune from challenge."

Symposium on Direct Democracy

I have just received in the mail Volume 13, Issue 2 (2004) of the Journal of Contemporary Legal Issues. The issue features a symposium on direct democracy with contributions by Gail Heriot, Lynn Baker, Sherman Clark, Clay Gilette, Marci Hamilton, Nelson Lund, John Matsusaka, Maimon Schwartzchild, me, and Dane Waters. Eventually I expect the entire issue to be posted here.