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Rick Hasen (posts)
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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, coming summer 2012)
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NEW! Order the e-Chapter sneak preview for reading now:
The Fraudulent Fraud Squad: Understanding the Battle Over Voter ID: A Sneak Preview from "The Voting Wars: From Florida 2000 to the Next Election Meltdown
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Book introduction
Table of Contents
Order from Amazon.com
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Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Election Law--Cases and Materials (4th edition 2008) (with Daniel Hays Lowenstein and Daniel P. Tokaji
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)Election Law Resources
Election Law--Cases and Materials (4th edition 2008) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
Election Law Journal
Election Law Listserv homepage
Election Law Teacher Database
Repository of Election Law Teaching Materials (2011 update)
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Balkinization
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
Buzzfeed Politics
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Concurring Opinions
CQ Politics
Demos
Election Updates
Fairvote
Election Law@Moritz
Electionline.org
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
The Hill
How Appealing
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Political Wire
Politico
Prawfsblawg
Roll Call
SCOTUSblog
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Why Tuesday?
Recent Newspapers and Magazine Commentaries
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Articles 2004-2007
Category Archives: John Edwards
“Could John Edwards have been charged with something else?”
Allen Dickerson writes at Campaigns & Elections.
“The John Edwards trial: where it is; where it’s going”
MSNBC reports.
“Edwards Trial Could Be New Blow to Campaign Finance System”
The National Journal reports.
“John Edwards Trial Expected to Set Precedents for Campaign-Finance Law”
PBS News Hour reports.
Brad Smith on John Edwards Prosecution
Here.
Why It Probably Doesn’t Matter What Bunny Mellon Thought in John Edwards Trial
Via Political Wire comes this Walter Shapiro TNR piece suggesting the prosecution will prove the Bunny Mellon did not know about the Edwards affair when she gave the money to Edwards. Shapiro asks: “If Bunny Mellon did not know about the affair, how could her contributions be personal rather than political?”
But I don’t think that’s the right question. Let’s suppose Mellon did not know. Even if Mellon intended the money to help Edwards’ campaign, it is Edwards intent that matters here. As I explained in a Slate piece last year, under the murky law on what constitutes “personal use” of funds received during the course of a campaign, Edwards has at least a plausible argument his intent was to save his marriage and not to help his campaign. (My more technical post on this issue is here.)
Further, it should be pointed out that even if the jury convicts, there’s a good chance the conviction won’t stand. See Rick Pilde’s award-winning post, Why John Edwards Probably Did Not Commit A Crime, Regardless of His Motives or Those of The Donors.
“6 Things to Watch for at John Edwards Trial”
Josh Gerstein reports for Politico.
John Edwards, Tom DeLay, Don Siegelman and the Criminalization of Politics
My new Slate jurisprudence column begins: “If politics makes for strange bedfellows, so too it seems do political prosecutions.”
Another snippet:
It is no wonder then that liberals and conservatives have rallied around these politicians, despite the fact that most wouldn’t win any popularity contests. (Edwards was cheating on his wife while she had breast cancer, and then later lied about it on national television.) Each of these cases, which feature prosecutors relying on novel theories to criminally prosecute prominent political figures, raises two distinct dangers.
First, if the law is murky, prosecutors with a political agenda could use criminal prosecutions to take down their political enemies. Siegelman, Edwards, and DeLay each claimed that the prosecutions against them were politically motivated: Siegelman and Edwards blame Bush administration Justice Department prosecutors, while DeLay blames former Travis County District Attorney Ronnie Earle, a Democrat.
We don’t know whether these prosecutions were politically motivated or not, and of course each of these defendants has every incentive to make such claims. But the point is that when judges allow prosecutors to rely on novel legal theories in these sorts of cases, they open up the possibility of politically motivated prosecutions. Better to leave the criminal cases to clear violations of the law, such as Rep. Randy “Duke” Cunningham’s yacht bribe or Rep. William Jefferson’s $10,000 stash hidden in his freezer. If prosecutors can’t produce clear-cut charges, politicians and their campaigns should only face the potential for civil liability.
Second, even if prosecutors are well-meaning and looking out solely for the public interest, there’s a fundamental unfairness in subjecting politicians to criminal liability for uncertain violations of campaign finance law. The threat of criminal liability can ruin a political career. Look at the overreaching by federal prosecutors in the trial of Ted Stevens; the Justice Department’s attorneys were so hungry to get the Republican senator from Alaska, they withheld key exculpatory evidence from the defense.
“High stakes for John Edwards as trial begins”
CBS News reports.
John Edwards Trial Previews
NYT: Edwards Trial Set to Begin, Reopening a Story of a Derailed Political Career
Reuters: Former presidential hopeful John Edwards faces trial
CBS News: John Edwards Incredible Gamble
My Slate piece from last year on the Edwards charges is here. Tomorrow, I will have a broader Slate piece posting on the criminalization of politics.
“The Questionable Prosecution of John Edwards”
National Review editorializes.
“Regular folks vs. John Edwards; A jury is likely to weigh what Edwards did in the Rielle Hunter affair much more harshly than the Federal Election Commission”
Great Stephen Weissman oped in the LA Times. It concludes: “Whatever the verdict, the Edwards trial will highlight the need to remedy weak FEC campaign law enforcement, which now only encourages campaigns to push the envelope. There are long-standing proposals by campaign finance groups to revamp the commission. For these to move forward, however, leaders would have to lead. Sadly, no presidential candidate and no congressional heavyweight, Democratic or Republican, is even talking about this.”
“Does The Case Against John Edwards Go Too Far?”
Excellent Carrie Johnson report for NPR.
“John Edwards Faces Hometown Jury in Campaign Finance Trial”
Bloomberg News reports.
“Defining Campaign Spending Is at Heart of Edwards Trial”
NYT reports.
“John Edwards 2008 presidential campaign still spending, despite $2.1 million debt to taxpayers”
AP reports.
“Citing medical condition, Edwards seeks delay in trial”
WRAL reports.
“Judge: Former FEC members might testify for Edwards”
The Raleigh News & Observer reports.
“Judge withholds decision on elections experts in Edwards case”
WRAL: “A federal judge said Friday that she wants to see how the case against former Democratic presidential contender John Edwards plays out before deciding whether to allow two potential defense witnesses to testify.”
“John Edwards could win on experts issue”
Josh Gerstein: “At long last, John Edwards may finally have caught a break. While a federal court in North Carolina was considering the government’s motion to block his effort to call two campaign finance law experts to bolster his defense at his upcoming federal trial, the Fourth Circuit Court of Appeals (whose rulings are controlling in North Carolina) issued a ruling broadly affirming the role of legal experts in criminal trials. ‘Courts and commentators have consistently concluded that expert testimony that ordinarily might be excluded on the ground that it gives legal conclusions may nonetheless be admitted in cases that involve highly technical legal issues,’ a three-judge appellate panel wrote Tuesday in U.S. v. Offill (posted here).”
“John Edwards’s lawyers defend calling campaign finance experts”
Josh Gerstein blogs.
“Prosecutors try to keep former FEC chairmen from testifying in Edwards case”
News-Observer:“Federal prosecutors in the John Edwards case are trying to prevent two former Federal Elections Commission chairmen from testifying as expert witnesses in the criminal case against the former presidential candidate. In a document filed in federal court Monday, prosecutors contend that Scott Thomas and Robert Lenhard, former FEC chairmen who have raised questions about the prosecution’s definition of campaign contributions, should not be classified as expert witnesses. Prosecutors contend that what the two men would offer are legal conclusions that would usurp the authority of the judge, the trial court’s ‘own legal expert.’”
I am called fairly often by attorneys looking to retain me as an expert and I generally tell them the same thing: the judge is the expert on the law. Election law specialists generally can be more useful as co-counsel than as designated experts.
That said, it seems the FEC Commissioners might be doing something different than testifying as to how to correctly understand the law: they could be testifying as to the understanding at the FEC of the laws and regulations on personal funds and contributions at the time of the Edwards payments. This could go toward Edwards’ possible mental state at his trial. I think we’d need to know more about the nature of the testimony and its relation to the charges to know if the government is right here.
Thanks to Jason Abel for the pointer.
“John Edwards’s Trial Will Showcase a Novel Defense”
Newsweek reports.
Rick Pildes ELB Guest Blog Post on John Edwards Case Chosen as One of the Best Legal Blog Postings of the Last Year
Details here. Congratulations Rick!
“John Edwards charges won’t be dropped by judge”
Politico reports (includes comments on the case from Jan Baran).
John Edwards to Trial? Maybe not.
John Edwards, putting the best face on a big loss, says he wants his day in court. According to a Raleigh News & Observerarticle, the trial judge, while rejecting the motion to dismiss, “noted that some of the defense team’s arguments had merit that would be better decided at trial.”
For reasons noted in this Slate piece, I think Edwards ultimately has a good chance of prevailing on his argument. (Rick Pildes–in an award winning post (to be featured in The Green Bag)– believes Edwards’ defense case is even stronger.)
My question for criminal procedure folks is the availability/wisdom of seeking some kind of interlocutory review of the legal question before trial in the 4th Circuit. I know nothing on the criminal side of things, so I would welcome some education on this question.
Edwards doesn’t really want to go to trial, because jurors have reasons to hate him unrelated to his crime. Can he avoid it through an interlocutory appeal?
Breaking News: John Edwards Loses His Motions to Get Case Dismissed
See here. I’ll be very interested to see the judge’s reasoning.
“John Edwards, his attorneys deny conflicts of interest”
Josh Gerstein blogs.
“Defense says Obama team didn’t stand up for John Edwards”
Interesting Gerstein report.
“John Edwards’s Lawyers: Prosecution is Political”
Josh Gerstein has the scoop, and the docs.
No deadlock here
The FEC agrees unanimously with the audit report, ordering John Edwards’ campaign to repay $ 2.3 million to the Treasury (he’s reported to have had $ 2.6 million cash on hand as of June 30).
Every little bit helps the budget, right?
“FEC Audit Report Says Edwards Campaign Should Repay $2.4 Million in Public Funds”
BNA’s report (subscription required) begins:
“The 2008 presidential campaign of former Sen. John Edwards (D-N.C.) should have to repay over $2.4 million to the U.S. treasury from the federal matching funds the campaign received, according to a draft audit report set to be considered by the Federal Election Commission July 21.
The draft report by FEC staff auditors was included on an agenda of items to be discussed at the commission’s next open meeting July 21.”
“John Edwards Sought Millions From Heiress as Feds Closed In – ABC News Exclusive”
See, he’s not a candidate anymore and he still wants Mellon’s millions! Maybe he wants to show the earlier money was not a contribution.
“John Edwards: The Jerk, the Felony, and the Trouble With Transparency”
Mark Schmitt has written this piece for The New Republic.
“John Edwards is Not a Criminal”
Steve Simpson has written this WSJ oped, which quotes my Slate commentary on the Edwards prosecution.
“Elite Justice team walks prosecutorial tightrope”
WaPo reports on the Edwards prosecution decision.