A New Year's BCRA Challenge

I'm still editing the BCRA case for the election law supplement. There are two errors in footnote 72 of the joint Stevens/O'Connor opinion. I'll post the name of the person who first sends me an e-mail identifying both errors.

Happy New Year!

UPDATE: Adam Charnes found two errors, including one I did not find. So he wins, but there is still another error in the footnote, which I would surmise was added at the last minute. Here is what Adam found:

1. The correct cite isn't "42 U. S. C. A. §441i(e)" but "2 U.S.C.A. §441i(e)".

2. In "Colorado II, 533 U. S., at 465 (THOMAS, J., dissenting)", it should read Kennedy not Thomas.

"The Soros Agenda"

The Wall Street Journal offers this editorial. Thanks to Steven Sholk for the pointer.

Sunstein on McConnell v. FEC / McConnell typo

On December 21, the Washington Post published this oped by Cass Sunstein on the BCRA decision. I have expressed skepticism of the particular kind of Court deference in the BCRA opinion that Sunstein here praises, and I'll be writing about that in the coming weeks.

In editing the McConnell decision for the special 2004 update to the Election Law casebook that I coedit with Dan Lowenstein, I ran across the following typo in C.J. Rehnquist's partial dissent:

"[P]olitical parties often foster speech crucial to a healthy democracy [citation], and fulfill the need for like-minded individuals to ban together and promote a political philosophy." 72 U.S.L.W. at 4089 (my emphasis). One might better describe members of Congress as the group of like-minded individuals that "banned together" some direct corporate and union spending on electioneering communications.

Vieth Oral Argument Transcript

It is available here. Thanks to Marty Lederman for the pointer.

New Rochelle Voting Rights case

Details here.

Catching up

While I was gone, the 11th circuit upheld disclosure requirements for section 527 political organizations and the three-judge court hearing the Texas redistricting lawsuit made some important rulings. Ed Still has the details here and here respectively.

Blogging will remain light for the next two weeks.

Lazarus on Vieth

Edward Lazarus writes this oped on Findlaw. The article makes a typical John Hart Ely process-based argument for intervention in partisan gerrymandering.

Oped by Weiss and Noble

Lawrence Noble and Steven Weiss of the Center for Responsive Politics write Want to Know How a Congressman Will Vote? Follow the Money in the Chicago Sun-Times.

"Losing Crusade May Still Pay Dividends for Senator"

The New York Times offers this article about Senator McConnell and McConnell v. FEC.

Florida Felon Disenfranchisement Case Reversed by 11th Circuit

See the opinion in Johnson v. Bush here. Plaintiffs challenged Florida's felon disenfranchisement law and the district court granted summary judgment for the state defendants. The appellate court remanded the case for further factual findings on both equal protection and Voting Rights Act claims related to Florida's law on felon disenfranchisement. One judge dissented. Thanks to How Appealing for the pointer.

Commisioner Smith on Regulating 527s

See this very important interview that FEC Commissoner Brad Smith gave to the A.P. Here's a snippet of why Smith thinks that the FEC may have to treat the 527s as political committes subject to FEC regulation:

Smith said that while he hasn't formally made up his mind, he believes the court's ruling may require the FEC to treat the new groups just like regulated political committees. As such, they would be limited to accepting no more than $5,000 in donations from each individual, and be banned from taking corporate or union money.

It also would require them to disclose their finances and spending to the FEC.

Smith said the high court ruling seems to eliminate the court's previous "express advocacy" standard, which meant the FEC could regulate groups that spent money expressly calling for a candidate's election or defeat.

More on Colorado re-redistricting litigation

See here.

John Lott on BCRA's Media Exemption

See here.

"E-Voting Undermined By Sloppiness"

Wired News offers this report.

Branch v. Smith remand decided

The Mississippi Supreme Court has decided Branch v. Mauldin, on remand from the United States Supreme Court opinion in the redistricting case, Branch v. Smith. Background and commentary here at Thus Blogged Anderson.
CORRECTION: This case was not on remand, but a parallel state case.

Smith to Become FEC Chair

As expected, Brad Smith has been elected the FEC chair, succeeding Ellen Weintraub who now becomes vice chair. In the wake of the Supreme Court's ruling in McConnell v. FEC, the actions of the agency are going to take on increasing importance and be viewed with intense scrutiny in the coming months. Of particular relevance is how the FEC will treat 527 organizations.

"Muzzling Speech"

Robert Samuelson offers this Washington Post oped on the BCRA case. For a different perspective, see Micah Sifry at Tompaine.com.

Good news/bad news

My new book (see the link near the top of the right side of the blog) is selling well. That's good news. The bad news is that the publisher is now out-of-stock until a new printing in late December or early January. If you try to order from the publisher now, it won't ship until then. Amazon has four copies left, and it appears that Barnes and Noble has some as well (with a 20% discount). Links to order from those places appear on the right side of the blog as well.

Campaign finance news and opinion

Stuart Taylor on BRCA. David Broder on BCRA. The Hill on post-BCRA 527s. The Washington Post on the FEC fining John Ashcroft's campaign.

Programming Note

With 250 essays to grade, a planned family vacation, an edit of the McConnell case for the election law casebook supplement, and an article to write about the case for the upcoming Penn election law symposium, blogging will be light through the beginning of January. Happy holidays!

Legal Times' Coverage of Campaign Finance Decisions

You can find four articles and commentaries here. Free registration is required.

New York Times article on NIST conference discussing DRE security

See here.

Article on Confirmation of Members of Election Assistance Commission

The EAC, a creature of the HAVA law, will start kicking into gear following the Senate confirmation of its four members. Doug Chapin of Electionline.org offers this article on the EAC.

More BCRA News and Commentary

The Washington Times offers an editorial, "Free Speech Defeated." Hiawatha Bray writes Taking First Amendment Battle Online for the Boston Globe. Paul Weyrich offers these thoughts. Roll Call editorializes here and offers Battle Over FEC Awaits Next Year (a must-read for those who have the paid subcription).

Interesting Bee editorial positions

Yesterday's Bee featured this editorial attacking the issue advocacy provisions of BCRA, and Mark Paul's column: "Tired of Redistricting Hyjinks? Try At-Large Elections." Thanks to Lance Olson for the pointers.

UPDATE: Kevin Murphy responds to the Paul oped here.

Rasberry, Post on Vieth

See A Supreme Conundrum by William Rasberry in the Washington Post. The newspaper also offers this editorial, "Rescuing U.S. Democracy," on Vieth.

Round-up of post-BCRA stories

The National Law Journal features Shifting Ground: A Campaign Ruling Gives Congress Great Deference. The Washington Post offers Democratic "Shadow" Groups Face Scrutiny. The New York Times offers A Law Survives. Now Let's Subvert It. The Christian Science Monitor offers Finance Decision Could Put Chill on First Amendment. Rannesh Ponnuru at National Review Online writes Reviewing the Judges: What Conservatives Should Learn from the Campaign Finance Decision.

The Sarasota Herald Tribune offers Ruling Could Lead to State Reforms. Steve Chapman of the Chicago Tribune writes How Mentioning a Candidate Can Land You in Jail.

More on 527s

Back here I asked the question whether an unincorporated 527 association can accept unlimited contributions for electioneering communications. It appeared that the answer was yes, so long as the 527 was not incorporated, took no corporate or union funds, and did not engage in express advocacy.

It turns out that there is an argument to limit 527 contributions---that such organizations are "major purpose" organizations that can be regulated as political committees under the FECA, the same way that political parties are regulated. For an argument in favor of this interpretation, see Donald Tobin, Election Speech and Section 527 of the Internal Revenue Code, 37 Ga. Law Review 611, 688-691 (2003). I have not yet looked into this issue myself and would be interested in hearing counter-arguments.

NPR Report from NIST Conference on DRE Security Issue

You can find the audio link here.

L.A. Times endorses Holt Bill and DRE Paper Trail

See here.

"Campaign Finance Sponsors Now Target FEC"

See this AP report.

Brookings webcast of McConnell post-mortem

You can access the webcast by going to C-SPAN and clicking on "Discussion on Legal and Political Impact of McConnell v. FEC."

ABA Journal e-report article on McConnell

See here. Thanks to Steven Sholk for the pointer.

The 527 Issue Takes Center Stage

As I flagged here, the big money action in campaign finance is going to shift to 527 organizations. Today's New York Times picks up that theme with A New Battleground in Political Fund-Raising.

See also this Wall Street Journal article. Thanks to Steven Sholk for the pointer.

Texas redistricting litigation news

The Washington Post offers this report. See also this Houston Chronicle report.

More opeds on the campaign finance decision

Spencer Overton writes Campaign Reform's Next Step in the Boston Globe. E.J. Dionne writes Money Talks, and the Court Listens in the Washington Post. You can find Google news links to many newspaper editorials on the case by clicking here.

Howard Bashman also links to this NPR BCRA coverage and commentary.

"A Court Infused With Pragmatism"

Linda Greenhouse offers this analysis in the New York Times, which begins: "The Supreme Court that upheld the new campaign finance law on Wednesday was a pragmatic court, concerned less with the fine points of constitutional doctrine than with the real-world context and consequences of the intensely awaited decision."

Tony Mauro also writes First Amendment Gets Short Shrift at High Court.

Second Circuit decides Spargo

Yesterday was indeed a busy day for election law. See here.

New Report from Public Campaign

See The Color of Money. See also this oped. From the oped: "Despite Wednesday's high-court ruling, Americans still should be decrying what amounts to a new poll tax: the current system of privately financed election campaigns. Because the system implicitly relies on an elite group of wealthy, white donors to fund most campaigns, it discriminates against people of color and other underserved communities that don't cough up as much money."

More on Vieth

The Independent (UK) has an article reprinted here. (Thanks to David Ettinger for the pointer.) Howard Bashman collects more articles on the oral argument and the Texas redistricting case here.

McCain-Feingold News and Commentary

Thank God for Howard Bashman. Howard, who was in the Virgin Islands at oral argument, returned last night and linked to almost all of the BCRA news and commentary here and here

In addition, my oped, "Refomers, Cheer While You Can; The High Court Issues a Key Ruling on Campaign Finance, But Warning Signs are in Sight," appeared in today's Los Angeles Times.

For more coverage not mentioned by Howard, see this Wall Street Journal article, this Wall Street Journal editorial (thanks to Steven Sholk for the WSJ links), these comments by Mickey Kaus, this story in The Hill, and this Roll Call breaking news report.

Deference to factual findings

One final thought tonight: One of the big issues discussed among readers of the lower court opinions (or at least "skimmers" of the 1800 page lower court opinions---I think that there were probably fewer than 100 people not working on the case as lawyers or at the courts who actually read it) was how the Supreme Court was going to deal with the lack of a majority of factual findings of the three-judge court. (See my point number 5 from this May 7 post.)

So far as I can tell from the opinions for the Court (I have barely skimmed the dissents at this point), the issue never was raised. (If there is a footnote addressing this issue that I have overlooked on my first way through, please let me know!) Thus, the court cites to this or that opinion of one or more of the lower court judges, without considering whether it was a factual finding supported by a majority of the lower court judges. Indeed, I was struck by the large number of citations in the Stevens/O'Connor opinion to Judge Kollar-Kotelly's opinions, including those parts which I believe she made findings not joined by the other two judges.

McConnell v. FEC: The Big Picture

Although today's opinion is significant on the doctrinal questions of soft money and issue advocacy, I want to step back for a minute and look at the big picture, and to me the big picture is the Court's cursory dismissal of First Amendment arguments. I write these words as a supporter of the Court's determination that the soft money and issue advocacy provisions are constitutional. My complaint is that the Court reached the decision too easily.

Consider two prominent examples, that I describe in more detail in the post below. First, the majority dismissed in a single paragraph a concern that the new issue advertisement provision would violate the First Amendment by regulating too much speech not intended to influence the outcome of elections. The three-judge court that had considered the issue before the Supreme Court devoted hundreds of pages to the questions of substantial overbreadth---in my view a close and difficult question.

Second, the majority dismissed in a footnote the vagueness attack on the promote, support, oppose, or attack definition of federal election activity. Perhaps the Court really has confidence that the FEC can craft some workable regulations here, but the recent history of the FEC gives me little confidence.

The Court’s cursory dismissal of the First Amendment concern illustrates what is most stunning about the opinion: its willingness to defer to Congress over the appropriate role of money in politics. Buckley may not quite be dead yet, but the opinion marks the completion of a seismic shift begun by the Court in 2000 away from Buckley and toward a more holistic view of the democratic process and the proper role of money in politics.

Thus, McConnell v. FEC follows the Court’s decision in 2000 in Shrink Missouri to uphold Missouri’s very low contribution limits for statewide office, its decision in Colorado Republican II in 2001 to uphold limits on party spending coordinated with candidates, and its opinion in Beaumont last June upholding Congressional limits on non-profit corporate electoral activity.

These opinions never explicitly overrule Buckley. But rather than focus, as Buckley did, solely on a First Amendment interest that debate be “uninhibited, robust, and wide-open,” the new opinions see, in the words of Justice Breyer concurring in the 2000 case, “constitutionally protected interests on both sides of the legal equation.”

Brad Smith made similar points about Buckley's loss of vitality after Beaumont. Bradley Smith, "Campaign Finance Reform: Searching for Corruption in All the Wrong Places," 2002-2003 Cato Supreme Court Review 187.

Now I don't agree with Brad Smith on whether the demise of Buckley is a good thing or not. But I think the Court should have given more careful treatment to some of the First Amendment concerns. If not, the danger is that self-interested legislation makes its way through very easily under the guise of campaign finance reform. (I know some people put BCRA itself into this category---for the most part (excepting things like the Millionaire's Provision), I don't).

UPDATE: Marty Lederman responds here with a much more charitable view of how the Court handled these issues than I have. I would agree more with Marty on the substantial overbreadth point if the Court actually explicitly bought the argument I had put forward on the issue in my brief.

UPDATE 2: See Chris Geidner here and Erik Newton here.

527 Organizatons: The Next Big Question

Over on the election law list last week, I responded to a post by Jim Bopp about George Soros giving money to various pro-Democratic organizations. Bopp's point was that BCRA favors individuals over groups.

My response was that it appears that nothing prevents a group of individuals from banding together as an unincorporated 527 organization. (See here.) If the organization declines any corporate and union funds and avoids express advocacy (so as not to be classified as a political committee under the FECA), it looks like it could engage in unlimited spending with unlimited contributions from individuals. Trevor Potter replied: "I think Rick is correct in his statement of current law. This raises a variety of legal and policy questions, such as whether an organization whose express purpose is to defeat a specific federal candidate should be outside of the federal election laws."

This point is now all the more urgent given the Supreme Court's decision in McConnell. Because if I am right, we are likely to see a significant amount of activity along these lines in the 2004 election cycle.

I would be interested in hearing from anyone who believes that this interpretation is incorrect.

Ken Starr answers Washingtonpost.com reader questions about the opinion

See here.

Reports from observers of Vieth oral argument

See here and here. More to come.

UPDATE: See Nate Persily's observations here.

Other initial views of the opinion

Marty Lederman has some interesting thoughts here and here. (UPDATE: See also here and here.)

AP's latest report is here (And for those who care about Vieth, AP's report on oral argument is here. ) The Washington Post's early report is here. The New York Times early report is here. The Los Angeles Times early report is here.
Brookings is having a forum with Tom Mann, Trevor Potter, Ken Starr, and Seth Waxman tomorrow morning, with further analysis in the afternoon. Details here.

Some Initial Analysis: Title I (Soft Money)

In the main, I am not surprised that the Court upheld the soft money provisions of the law. As I had argued in this Election Law Journal article, most of the constitutional issues surrounding soft money were in effect already resolved in 2001 when the Supreme Court decided the Colorado Republican II case.

There are two noteworthy aspects of the majority opinion's analysis on this point that stand out to me. First, coming out of oral argument, I was convinced that a number of Justices who ended up in the majority would have had problems with the provision of the soft money limits to state and local political parties. The concern was not a "federalism" concern. (The majority gave that federalism concern, pushed so heavily by Ken Starr at oral argument, the back of its hand.) It was that the concerns about corruption and the appearance of corruption were too attenuated to the state and local level, especially given how the law might interfere with state and local politics. (The briefs of the California parties really played this point up, and both Starr and Burchfield stressed the point at oral argument.) To respond, the majority leans heavily on the anti-circumvention rationale (that state and local parties would replace national parties in the sale of access to federal candidates and elected officials) and notes the possibility of an as-applied challenge. "If indeed state or local parties can make" a showing that the provision prevents the parties' ability to engage in effective advocacy, an as-applied challenge might be possible. That "effective advocacy" standard is borrowed from Shrink Missouri, and is really a toothless standard. See Richard L. Hasen, Shrink Missouri, Campaign Finance, and "The Thing That Wouldn't Leave," 17 Constitutional Commentary 483 (2000).

The other somewhat surprising aspect here is the footnoted dismissal of the argument that the soft money's definition of "federal election activity" was too vague. (Maj. opn. at 62 n.64.) The definition used words like "promote," "oppose," "attack" and "support." The court's quick answer was that people of ordinary intelligence know what that means, and, in any case, someone who does not know can go get an advisory opinion from the FEC on this question. Blog readers may recall that this was precisely the approach urged by Judge Leon in the three-judge court below, and it was subject to great ridicule by campaign finance lawyers as unworkable. I think that this footnote is going to be the source of great contention in the months and years ahead.

Some initial analysis: the Title II issues

Title II of BCRA did two main things related to so-called "sham" issue advocacy. First, it treated broadcast advertisements made within 30 days of a primary or 60 days of a general election, featuring a candidate for federal office and targeted at the relevant electorate as subject to disclosure rules similar to rules that would apply in the case of express advocacy. In other words, one could not get around disclosure rules by saying "Call Bush and tell him what you think about his Medicare plan" rather than "Vote against Bush." Second, it held that corporations and unions, who already were barred from running express advocacy using general funds (they needed to do it through a separate political action committee subject to special rules), must comply with similar segregated fund rules for sham issue advocacy under Title II of BCRA.

The main constitutional argument against Title II was that it was substantially overbroad---it would capture too many ads really about issues, and not about candidates for office. In this amicus brief that I filed with the Court on behalf of the Center for Governmental Studies, I argued that neither the disclosure provisions nor the special corporate and union requirements (the "separate fund requirements') were overbroad. But the issue was mired in controversy over the social science data (the "Buying Time" studies) that got a great deal of attention in the lower court. (My earlier analysis of this controversy is here.

The other main concern, that emerged after oral argument, was that the Court might be considering overruling the rules that require separate PACS for corporations and unions, even as to express advocacy. That was because the votes on an earlier case on the topic as to express advocacy. Austin v. Michigan Chamber of Commerce, appeared close, and Chief Justice Rehnquist, who sided with the Austin majority, indicated at oral argument that he was reconsidering his view. That appeared to make a majority, with O'Connor, Scalia and Kennedy as Austin dissenters, and Thomas certainly in that camp as well.

The five Justice opinion (Stevens, O'Connor, Breyer, Souter, Ginsburg) is somewhat of a surprise, quickly brushing off the overbreadth argument. As to Austin, the majority appears to take the position (as I and others argued in the briefs) that the plaintiffs did not really take on the Austin rationale, and therefore the only question was whether it should be extended to cover sham issue advocacy. Justice Kennedy in dissent (speaking also for Rehnquist---who had switched sides, and Justices Scalia and Thomas) noted that O'Connor appeared to swtich sides, and argued that Austin itself should be reexamined. So this main component of the reform law was saved by Justice O'Connor's switched vote, which balanced the switch by the Chief Justice.

Here are the relevant excerpts. First, from the majority opinion (footnotes omitted and citations altered):

We have repeatedly sustained legislation aimed at "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas." Austin; see Beaumont; National Right to Work. Moreover, recent cases have recognized that certain restrictions on corporate electoral involvement permissibly hedge against
"circumvention of [valid] contribution limits." Beaumont (quoting Colorado II.)

In light of our precedents, plaintiffs do not contest that the Government has a compelling interest in regulating advertisements that expressly advocate the election or defeat of a candidate for federal office. Nor do they con-
tend that the speech involved in so-called issue advocacy is any more core political speech than are words of express advocacy. After all, "the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office," Monitor Patriot Co. v. Roy,
401 U. S. 265, 272 (1971), and"“[a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation." Buckley, 424 U. S., at 48. Rather,
plaintiffs argue that the justifications that adequately support the regulation of express advocacy do not apply to significant quantities of speech encompassed by the definition of electioneering communications.

This argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy. The justifications for the
regulation of express advocacy apply equally to ads aired during those periods if the ads are intended to influence the voters' decisions and have that effect. The precise percentage of issue ads that clearly identified a candidate and were aired during those relatively brief preelection time spans but had no electioneering purpose is a matter of dispute between the parties and among the judges on the District Court. Nevertheless, the vast majority of ads clearly had such a purpose. Annenberg Report 13-14; App. 1330–1348 (Krasno & Sorauf Expert Report); 251 F. Supp. 2d, at 573–578 (Kollar-Kotelly, J.); id., at 826-827 (Leon, J.). Moreover, whatever the precise percentage may have been in the past, in the future corporations and unions may finance genuine issue ads during those time frames by simply avoiding any specific reference to federal candidates, or in doubtful cases by paying for the ad from a segregated fund.

We are therefore not persuaded that plaintiffs have carried their heavy burden of proving that amended FECA §316(b)(2) is overbroad. See Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973). Even if we assumed that BCRA will
inhibit some constitutionally protected corporate and union speech, that assumption would not "justify prohibiting all enforcement" of the law unless its application to protected speech is substantial, "not only in an absolute
sense, but also relative to the scope of the law's plainly legitimate applications.” Virginia v. Hicks, 539 U. S. ___, ___ (2003) (slip op., at 5–6). Far from establishing that BCRA’s application to pure issue ads is substantial, either in an absolute sense or relative to its application to election-related advertising, the record strongly supports the contrary conclusion.

Justice Kennedy wrote: "Instead of extending Austin to suppress new and vibrant voices, I would overrule it and return our campaign finance jurisprudence to principles consistent with the First Amendment. " He also wrote: "I dissented in Austin, 494 U. S., at 695, and continue to believe that the case represents an indefensible departure from our tradition of free and robust
debate. Two of my colleagues joined the dissent, including a member of today's majority. Ibid. (O’CONNOR and SCALIA, JJ.). See also id., at 679 (SCALIA, J., dissenting)."

BCRA opinion pieces posted here

You can find the entire opinion here.

BREAKING NEWS---McCain-Feingold Opinion May Be Imminent

Stay tuned!
UPDATE: According to a source at the Court, the entire statute has been UPHELD except for sections 213 and the minors' provision.
More to come.
5-4 on title 1 and title 2, in a Stevens/O'Connor joint opinion. More to come.

Delay in HAVA funding

BNA is reporting that the Senate is moving toward adjournment without freeing $830 million in funding to upgrade election equipment for 2003 or approving an additional $1.5 billion (already approved by the House) for 2004. The Senate may not meet again to do so until January.

Vieth Oral Argument previews

See The Philadelphia Inquirer; A.P. The Dallas Morning News (on the effect in Texas); The Christian Science Monitor; The Boston Globe. The New York Times offers this editorial.

Will Howard Dean Benefit from Al Gore's $6 Million in Leftover Campaign Funds?

The Hill explores the question here.

Reports on Vieth oral argument tomorrow

I would be very interested in having blog readers who attend the oral argument e-mail me about the oral argument tomorrow. I will post these reports on my blog. I wonder how the plaintiffs will handle the competition question if it comes up at oral argument: Is there any reason to think that a partisan gerrymandering test with teeth would do anything to foster competition rather than create the conditions for bipartisan gerrymanders? Given my long-running debate with Issacharoff and Pildes over "structural" election law arguments, I would love to hear a Justice ask the question whether political competition is a constitutional value properly considered by the Court.

Tomorrow could well be the day that the BCRA decision comes out as well. So it could be a busy day.

No BCRA Opinion Today

The next chance is tomorrow. See here.

"Wealthy Still Get Voice in Campaign Law"

See this AP report. The article apparently incorrectly indicates that a 30 day limit will kick in for the D.C. primary. Because it is a non-binding primary with no delegates as stake, that appears to be wrong. That means the next limit kicks in Dec. 20 for Iowa, unless the Supreme Court issues its opinion before then and strikes down one or more of the rules governed by the 30 day limit. The opinion could come tomorrow, Wednesday, or Monday. Otherwise, unless the Court interrupts its recess, it won't come before January 12.

"'Tis the Season to be Nasty"

See this CBSNews report, blaming McCain-Feingold in part for negative campaigning, as groups like Club for Growth try to get their issue ads in before the 30 day limit applies.

Ackerman on NRA Media Exemption

Following up on this story, NPR's All Things Considered interviewed Bruce Ackerman about whether the NRA should be allowed to take advantage of the media exemption. Audio link here. I found the interview very unsatisfying, in part because neither Ackerman nor the interviewer ever carefully focused on the right question: it is not whether the NRA should be exempt from otherwise applicable campaign finance regulations if it owns a media outlet. It is whether, if the NRA owns bona fide media outlets, can it gain exemptions for news stories, editorials and commentaries? On the latter question, of course it should. The hard part, as we know from the Massachusetts Citizens for Life case, is figuring out what a bona fide media outlet is.
UPDATE: The Los Angeles Times offers this story. And Marty Lederman sends in the following comments:

There are several inaccurate things about the Ackerman spot, such as his statement that the media exemption derives from the Free Press Clause (rather than from FECA and, in this case, BCRA), his suggestion that the NRA and other corporations can even now make independent expenditures (e.g., ads in the NYTimes), presumably using treasury funds, and his failure to explain that the issue in these cases is use of treasury funds v. the PAC requirement.

But I don't think it's clear that the relevant question is, as you suggest, whether the NRA's braodcast station would be a "bona fide media outlet." The applicable FECA and BCRA exemptions apply to any "communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station[, newspaper, magazine, or other periodical publication], unless such facilities are owned or controlled by any political party, political committee, or candidate." 2 USC 434(f)(3)(B)(i); 2 USC 431(9)(B)(i). The outlet that the NRA is seeking to purchase presumably would be a "broadcasting station" under the terms of these statutes. There is no further statutory requirement that the "outlet" be "bona fide." (The issue in Massachusetts Citizens for Life was whether the newsletter was a "periodical publication." That question is not relevant here, in the case of a "broadcasting station.")

The relevant statutory question, in other words, would be whether the partisan communications the NRA wishes to broadcast through its broadcasting station would "appear[] in a news story, commentary, or editorial."

Having said all that, I have to acknowledge that the FEC has in the past indicated -- at least in the context of periodicals and newspapers, rather than broadcasting stations -- that a particular medium might not be eligible for the exemption if its revenues are not ordinarily derived from advertising and/or subscriptions. See 44 Fed. Reg. 76,735 (1979). I've previously discussed the facts that: (i) this requirement does not derive from the statute itself, but is instead based on legislative history, particularly a floor statement of Senator Taft in 1947; and (ii) Three of the six current FEC Commissioners would jettison this requirement.

But even if the FEC and the courts were to retain this revenue-source requirement -- a big "if" -- the NRA could still qualify for the exemption as long as the broadcasting station in question did "ordinarily" derive its revenues from advertising, in which case the only question would remain whether the political communications in question were, in fact, "commentar[ies] or editorial[s]."

Thanks for writing!

Rob Richie on Vieth

See here.

"Voting-Machine Makers to Fight Security Criticism"

The Washington Post offers this report.

"Drawing a Line:" My commentary on Vieth

My commentary in the Legal Times is available here. It begins: "On Dec. 10, the Supreme Court will consider the invitation of some Pennsylvania Democrats to impose a new set of constitutional rules to police claims of partisan gerrymandering. Given the recent escapades of the Texas Legislature and others in re-redistricting twice in a single decade to gain partisan advantage, the Court may be tempted to accept the invitation. But it should decline."

One other interesting aspect of the case is the extent to which the plaintiffs and some of their amici rely upon Shaw v. Reno's "bizarre" district standard for evaluating claims of racial gerrymandering. The suggestion is that the same kind of analysis might apply to partisan gerrymandering. Put aside the inconsistencies of the analysis (Shaw was premised on the "expressive harm" that comes from separating people on the basis of race; it is hard to see that the same applies to separating people on the basis of party); and put aside that Shaw shape test was significantly diluted by subsequent racial gerrymandering cases such as Miller v. Johnson. I think the most interesting aspect here is the fact that some of the people using Shaw here have attacked it (as I have) as unprincipled or poorly reasoned in the racial context. Maybe this is all a way to get O'Connor's vote, who had voted in the earlier Davis v. Bandemer case that partisan claims were non-justiciable, but who also authored Shaw.

Ninth Circuit Dodges Big Issue Related to Primaries and Party Associational Rights

The Ninth Circuit has decided Arizona Libertarian Party v. Bayless. At issue is the constitutionality of Arizona's primary system in which "voters who are unaffiliated, registered as independents or geistered as members of parties that are not on the primary ballot may vote in the party primary of their choice." The Libertarian Party argued that the law violated its constitutional rights under a string of Supreme Court cases, most recently California Democratic Party v. Jones. In Jones, the Supreme Court held that California's blanket primary (in which any voter could vote in any primary election for each office) violated the constitutional rights of the parties who objected to it. The Court left open the question whether this would apply to the open primary or other primary forms, but (as I and others have argued), the logic seems to apply to any form of primary.

In the new Ninth Circuit case, the court held that the Arizona system was unconstitutional as to choosing party officials, but the court remanded for further consideration of the larger issue as to the selection of candidates for regular elected office.

Here is the relevant analysis:

The district court also erred in failing to consider separately whether the participation of nonmembers in the selection of candidates is constitutional under California Democratic Party v. Jones. See 530 U.S. 567. Although forcing the Libertarians to open their primary to nonmembers for the selection of party candidates raises serious constitutional concerns, we conclude that the resolution of the constitutional issue turns on factual questions not decided by the district court. We therefore remand so that the district court may consider the severity of the burden this aspect of the primary system imposes on the Libertarian Party’s associational rights, whether the state has sufficiently justified that burden, and if so, whether the selection of precinct committeemen is severable from the remainder of this semiclosed primary system.

These factual issues must be reviewed in light of the Court’s opinion in Jones. The Supreme Court there held that California’s blanket primary system imposed a severe burden on a party’s right to decide for itself who it will, and will not, associate with for the purposes of selecting a candidate. Jones, 530 U.S. at 582; see also Reed, 343 F.3d at 1204-05. Under a blanket primary system, all voters are able to vote for any candidate, regardless of party affiliation. Jones, 530 U.S. at 570. This system differs from Arizona’s, which restricts registered members of opposing parties with ballot access to voting in their own party’s primary. Arizona’s system also limits independent and unaffiliated voters who choose to vote in a party primary to participating in selecting only the candidates of that party. The Supreme Court in Jones noted that a system “in which the voter is limited to one party’s ballot” may be “constitutionally distinct” from the unconstitutional blanket primary. Id. at 577 n.8.

In striking down California’s blanket primary, however, the Supreme Court focused on the potential for the participation of nonparty members, including registered members of other parties, to influence the choice of the nominee at the primary and to cause partisan candidates to change their message to appeal to a more centrist voter base. See Id. at 578-79. Because of their smaller size, minor parties such as the plaintiff here are at a greater risk of both of these outcomes when their primaries are opened to nonmembers. See id. at 578. We
observe that the Court in Jones treated the risk that nonparty members will skew either primary results or candidates’ positions as a factual issue, with the plaintiffs having the burden of establishing that risk. See id. On remand, the district court should separately consider the constitutionality of nonparty members voting for Libertarian party candidates for public office, including the primary system’s potential to change the party’s nominee or the candidates’ positions.

Should the district court determine that Arizona’s candidate selection system is constitutional under Jones, it next must conduct a severability analysis. In general, only the unconstitutional portion of a legislative enactment should be invalidated. See Nat’l Adver. Co. v. City of Orange, 861 F.2d 246, 249-50 (9th Cir. 1988). Although severability is a question of state law that we review de novo, see Randolph v. Groscost, 989 P.2d 751, 755 (1999) (setting out the test for considering the severability of provisions of voter-approved initiative under Arizona law); Salve Regina College v. Russell, 499 U.S. 225, 239 (1991) (holding that the district court’s interpretation of state law is reviewed de novo), we nonetheless consider it prudent to remand to the district court where “we
believe the district court is better able to decide the question in the first instance.” Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 529 (9th Cir. 1989).

The biggest news: this kind of decision avoids much disruption before the 2004 primary season gets underway. That may have been a major motivation for the court to remand for factual findings, which will take time.

NY Times Endorses DRE Paper Trail

See here. Thanks to Douglas Kellner's post to the Votingtech list for bringing this to my attention.

"High court takes up Pennsylvania political map"

The Pittsburgh Post-Gazette offers this report.

"No Confidence Vote: Why the Current Touch Screen Voting Fiasco Was Pretty Much Inevitable"

Robert X. Cringely offers these thoughts.

Some Iowa Stations Refuse to show Al Sharpton on Saturday Night Live

See this Des Moines Register report. Thanks to Kieran Williams who called this to my attention, and asks: "I'd be curious to know whether the list's readers agree that Iowa NBC's lawyers indeed 'must not have finished law school,' as the Sharpton campaign alleged."

"Supreme Court Takes Gerrymandering Case"

See this Heart newspapers report, previewing the Wednesday Supreme Court argument in Vieth v. Jubelirer. See also this oped column by Martin Dyckman.

Media Exemption to Campaign Finance Laws to Be Challenged Directly by NRA

Frequent readers of this blog know that one of the more interesting and troubling aspects of campaign finance regulation is the exemption to otherwise applicable limits on corporations for the institutional media. The issue may well be discussed in at least some of the opinions the Supreme Court will issue in the McCain-Feingold case, perhaps as early as Tuesday.

In the meantime, see NRA Seeks Status as a News Outlet in the Washington Post. The article begins: "Hoping to spend as much as it wants on next year's elections, the National Rifle Association is looking to buy a television or radio station and declare that it should be treated as a news organization, exempt from spending limits in the campaign finance law.

"We're looking at bringing a court case that we're as legitimate a media outlet as Disney or Viacom or Time Warner," the NRA's executive vice president, Wayne LaPierre, said in an interview. "

"Democrats Worried By Emerging Liberal Force"

More on the new 527 organizations in this Seattle Times report. See also Money, Votes, Pursued for Democrats in the Washington Post.

"Smith Says He Wasn't Bribed on Medicare"

A.P. offers this report.

Vieth and Partisan Advantage

In response to my earlier post about the Wall Street Journal's position below on the partisan gerrymandering case, Marty Lederman sent the following query along to the election law listserv:

More fundamentally, is it obvious that there is a "Democratic" and a "Republican" "side" in Vieth, other than in the narrow sense that Democrats would benefit in Pennsylvania if the Court were to invalidate the redistricting that occurred there? It is very consipcuous that, so far as I know, the national parties have not taken any "sides" in the case. (I'd be interested to hear if they have said anything about it at all.) Right now, of course, the Republicans are cleaning the Democrats' clock on redistricting across the country, both because they focused for the past couple of decades on gaining control of state houses, and because at present they're much better, and more ruthless, at playing the game. But is there any consensus that, in the long term, a reversal in Vieth would benefit the Democratic Party? What would Phil Burton say?

Here is the response I just sent to that list:

The question is one of time horizons. I think that given the positions of Democrats for this round of redistricting at least, whatever they can do to change the balance of power in the House would be in their short term interest. (On the Republicans' advantages, see Sam Hirsch, The United States House of Unrepresentatives: What Went Wrong in the Latest Round of Congressional Redistricting, 2 Election Law Journal 179 (2002).) This is not universally true for all Democrats even this decade. See for example, this brief filed by the (Democratic) Alabama legislative leadership, supporting the Republicans in Vieth.

The harder question is the long term. Those familiar with Phil Burton's Democratic redistricting in California might never have imagined that the tables would turn. I think they could well turn again against Republicans, though probably not in this decade. So even those Democrats with a partisan outlook might not agree to give partisan gerrymandering more teeth if they are looking sufficiently in the long term.

I must confess that I'm not a regular reader of the Wall Street Journal opinion page. Perhaps it was unfair of me to expect that the editorial board might change their view on the virtues of court intervention in partisan gerrymandering now that it helps Republicans. Certainly there are Democrats who had called on the courts to stay out of it in the 1980s who are more sympathetic now. (Indeed, that is the thrust of the WSJ editorial).

Republicans Challenge Colorado State Supreme Court Districting Decision in Federal District Court

See this Denver Post report. (Thanks again to Rob Witwer for keeping me up-to-date on this topic.)

I would like more information about the federal claim. I wonder the extent to which the argument is one based on Article I, Section 4 of the Constitution, giving the state legislature the right to determine the rules for conducting federal elections. If that is indeed the argument, then I wonder why the proper step is not a petition from the Colorado Supreme Court to the United States Supreme Court. This would be much like the Article II argument that made its way from the Florida Supreme Court to the U.S. Supreme Court in Bush v. Gore.

"Justice Department to Review Possible Medicare-Vote Bribes"

A.P. offers this report.

"Congress Finds Money for Voting Systems"

A.P. offers this report.

Next Opportunity for BCRA opinion

Marty Lederman reports here that the Supreme Court will be issuing opinions on 12/9, 12/10, and possibly 12/15. After December 15, the Court has a recess until January.

Soros on Soros and BCRA

See here. Among Soros's arguments:

The Bipartisan Campaign Reform Act was an attempt to limit the influence that special interests can gain by financing candidates and to level the playing field between the two parties. My contributions are made in that spirit.

President Bush has a huge fundraising advantage because he has figured out a clever way to raise money. He relies on donors he calls "Pioneers," who collect $100,000 apiece in campaign contributions in increments that fall within the legal limit of $2,000 a person, and on those he calls "Rangers," who collect at least $200,000.

Many of these Pioneers and Rangers are corporate officials who are well situated to raise funds from their business associates, bundle them together and pass them along with tracking numbers to ensure proper "credit." They are buying the same level of access and influence for their corporate interests that they previously obtained with their own and corporate funds. With the help of Pioneers and Rangers, President Bush is on track to collect $200 million.

To counter the fundraising advantage obtained by this strategy, I have contributed to independent organizations that by law are forbidden to coordinate their activities with the political parties or candidates. That law minimizes or eliminates the ability to purchase influence in exchange for my contribution. Moreover, I don't seek such influence. My contributions are made in what I believe to be the common interest. ACT is working to register voters, and MoveOn is getting more people engaged in the national debate over Bush's policies.

"DeLay Fundraising for Charity Challenged"

The Washington Post offers this report.

"Court: Unenrolled Can Vote in Independence Primary"

A.P. has this report out of New York.

Report on Democratic Leaning Environmental 527 Organization

See this Chicago Tribune report (free registration required).

"GOP cries foul as Democrats skirt campaign law"

Joel Connelly offers this Seattle Post-Intelligencer commentary.

Dean's switch on campaign financing

Following up on this post, it appears (according to a BNA report) that an FEC draft holds that Dean and other presidential candidates are not bound by any earlier promises they had made to abide by spending limits in exchange for public financing. Dean had changed his position, before he took any funding from the government.

Commentary on Vieth (Partisan Gerrymandering case)

The Wall Street Journal offers this editorial (somewhat surprisingly siding with the Democrats in the Vieth case). Sam Hirsch (a lawyer for the plaintiffs) and Professor Nate Persily discussed the case yesterday on NPR's Diane Rehm show (audio link here.) There has not yet been much commentary against greater court policing of partisan gerrymandering in Vieth. My oped, scheduled to appear in Monday's Legal Times, takes that position.

"Now It is Thunder from the Left, Too, In the Ad War"

The Christian Science Monitor offers this report.

NYT Readers Respond to Krugman's Hack the Vote Piece on DRE Security

See here.

Surprising Development in Colorado Redistricting case

See Dem Files Suit to Revive GOP Map Plan, which begins: "A Democratic lawmaker has sued the state in federal court, attacking Monday's decision by the Colorado Supreme Court that threw out a Republican-drawn congressional redistricting law.

The lawsuit filed Wednesday in U.S. District Court in Denver by Rep. Carl Miller, D-Leadville, and three Republicans, contends that the decision violated the U.S. Constitution." See also this Denver Post article. Thanks to Rob Witwer for the pointers.

En banc order in First Circuit Voting Rights Case

On October 28, I blogged here about an important case under the Voting Rights Act, Metts v. Murphy. The First Circuit has now granted en banc review and issued a very specific order about what is to be briefed:

ORDER. Chief Judge Michael Boudin, Judge Juan R. Torruella, Judge Bruce M. Selya, Judge Sandra L. Lynch, Judge Kermit V. Lipez, Judge Jeffrey R. Howard, and Senior Judge Norman H. Stahl. The petition for rehearing en banc is granted. The panel opinion of this Court dated October 28, 2003 is withdrawn and the judgment of this Court of the same date is vacated. Oral argument is scheduled for February 4, 2004, at 2:30 pm. The parties are directed to file simultaneous supplementary briefs not to exceed twenty pages in length. The briefs should assume the familiarity of the en banc Court with the briefs already filed on this appeal and need not repeat arguments addressed therein. The supplementary brief for the defendants shall, at a minimum, address the following question: Given that Gingles preconditions were conceived primarily to address a different problem (multi-member districts) and that subsequent opinions have referred to the need to avoid applying the preconditions mechanically, why is the decision on the applicability of Gingles not better made after the plaintiffs have been allowed to develop a record both on this issue and on the totality of the circumstances test? The supplementary brief for the plaintiffs shall, at a minimum, address the following question: Recognizing that the Supreme Court has said that the Gingles preconditions are only a threshold requirement and that success also requires proof under the totality of the circumstances test, what facts do you expect to elicit through discovery or what lines of inquiry do you propose to pursue to satisfy this latter test? The parties are directed to file 15 copies of their respective briefs on or before January 5, 2004. Each side may also file a reply brief, not to exceed five pages, due on or before January 20, 2004. The attention of counsel is drawn to the requirements of Local Rule 32 as to the filing of briefs in disk form. The Court would welcome the filing of briefs amicus curiae, pursuant to the applicable local rules.

As this case is in conflict with at least one case from another circuit, the issue here is one to watch for eventual Supreme Court review. Thanks to Bill McGeveran for passing along the order.

Wall Street Journal article on Vieth case

See Gerrymandering Gets Focus. Thanks to Steven Sholk for the pointer.

"Liberal Group to Launch Anti-Bush Ads in Nevada"

Gannett News Service offers this report. BNA is reporting that the Federal Election Commission "has agreed to rule on a large, complex request from a Republican-leaning political organization seeking an advisory opinion outlining the limits on federal campaign activity by so-called Section 527 groups."

"After Scandals, State Panel Offers Plan to Revamp Judges' Elections"

The New York Times offers this report. UPDATE: The report referenced in the article is available here. Thanks to Jim Gardner for the pointer.

"Voting Reforms Unlikely Before 2006, Experts Say"

See this Scripps Howard Foundation Wire article.

"Speeding Scrutiny of Senate Donors"

The New York Times offers this report, which begins: "NEXT month, after the candidates for president file their quarterly reports about who gave them money and how much they gave, voters will be able to see those reports on the Internet within a couple of days. You can go to the Web site for the Federal Election Commission (www.fec.gov), type in the names of neighbors, co-workers and friends, and see their donations. The system works just as quickly for candidates for the House of Representatives.

But as the 2004 election year approaches, one notable body remains exempt from federal regulations requiring quick Internet disclosure of donors: the United States Senate."

"Diebold Backs Off Legal Challenge"

Wired News offers this report. Thanks to David Ettinger for the pointer.

"Ohio Study Finds Flaws in Electronic Voting"

The New York Times offers this report. You can find links to the study and related documents here on the Ohio Secretary of State's website.

Opinions on Colorado Redistricting decision

See Al Knight in the Denver Post; the Washington Post; the New York Times; the Fort Collins Coloradan. In related news, the Rocky Mountain News offers Dems Aim to Let Panels Set Districts.

McCain-Feingold Millionaire's Provision May Kick in in Minnesota

See this A.P. report.

"5-2 ruling could ripple beyond Colorado"

The Denver Post offers this report.

"FEC Ups Fines in Turf War"

The Hill offers this report.

"Democrats Have Built a Soft-Money Lifeboat"

Dick Morris offers this opinion column in The Hill.

McCain-Feingold: Why Did We Bother?

Steve Bainbridge poses that question here. I don't have time for a detailed response now. I have always been ambivalent about the soft money provisions as a matter of policy---they serve the salutary purpose of breaking the market of the sale of access to elected officials through party intermediaries, but push money to less accountable third party groups. As a matter of constitutional law, I believe that the soft money ban is constitutional, whether it is good policy or not. But McCain-Feingold does other things as well, such as treating those sham issue ads ("Call Rep. Smith and tell her what you think about her plan to gut Medicare") the same as other ads containing words of express advocacy---meaning that we can have an effective disclosure regime (which we didn't have pre-McCain-Feingold) as well as limit the extent of corporate and union involvement in the political process.

"Marbleous Decision in Tied Board Election"

The Los Angeles Times offers this report (thanks to Josh Gross for the pointer).

Askin on Vieth

Frank Askin writes Drawing Over Democracy, an oped on the forthcoming partisan gerrymandering case. The article is in Legal Times (free registration required).

"Who Tried to Bribe Rep. Smith?"

Timothy Noah of Slate offers this analysis of reports relating to carrots and sticks allegedly put in front of Rep. Nick Smith to get his vote on the recent Medicare bill. Noah suggests that if the facts as reported in the press are true, this may be a violation of federal bribery law and I think he's right. I am less sure as to whether the threats not to support Smith's son for office, who is running to succeed him, would be prosecutable under some kind of extortion statute such as the Hobbs Act.
UPDATE: Beth Garrett suggests here that if all the statements were made on the House floor, any prosecution might be barred by the Constitution's Speech or Debate Clause.

"A Hard Sell on 'Soft Money'"

The Wall Street Journal offers this report, which begins; "The Mccain-Feingold law's ban on unlimited donations to political parties was barely three weeks old last November when liberal operatives started plotting ways around it." Thanks to Steven Sholk for the pointer.

Waiting to hear from Supreme Court

Still no information available on the web about which opinions, if any, the Court has/will issue today. Stay tuned.
UPDATE: Apparently no BCRA opinion today. See here. That means 12/9 is the next possible chance on the Court's regular schedule for the opinion to issue.

Soros debate

The election law listserv is having a very interesting debate about my post yesterday on those who criticize and defend Soros's spending favoring Democrats. Click here and begin with Steven Mulroy's post three from the top. My most recent response is posted here.

More complaints about Democratic memos

Following on Byron York's column that I blogged here, Melanie Kirkpatrick raises the same complaints in this Wall Street Journal oped. What is so objectionable about the Democrats' conduct? Here's what Kirkpatrick says:

The memos--from 2001-02 when the Democrats controlled Judiciary under the chairmanship of Sen. Patrick Leahy--show the senators took their marching orders from People for the American Way, the Alliance for Justice, NARAL Pro-Choice America and the NAACP. No surprise here, as anyone who's been following the course of Mr. Bush's stalled nominees knows full well. But the extent of the groups' micromanagement is eye-popping and exposes the opposition to Mr. Bush's judicial picks for what it really is: political maneuvering, not principled differences of opinion.

I don't understand the distinction Kirpatrick is drawing. Why would these liberal groups oppose these nominees except for principled differences of opinion? The participation of interest groups in "micromanaging" certain issuse for either Democrats or Republicans is neither eye-popping nor objectionable. One of the salutary features of interest group involvement is that such groups provide expertise that politicians may draw upon. The problem comes when the interest group pursues something in its self-interest that opposes the public good. I don't see that here. Rather, we have an ideological disagreement over what the public good requires. Democrats were not duped into doing anything inconsistent with their values.

Krugman on DRE Security

Paul Krugman offers this New York Times oped, "Hack the Vote," on touch screen voting security. He promises a follow-up column with suggested solutions.

No Subpoena for DeLay in Redistricting Case

A.P. offers this report.

Colorado Supreme Court Redistricting Case Coverage

See stories in the New York Times; Washington Post; A.P.

"Dust-Up Over E-Vote Paper Trail"

Wired News offers this report.

Toobin on Vieth

This week's New Yorker features The Great Election Grab; When does gerrymandering become a threat to democracy? by Jeffrey Toobin.

Colorado Re-Redistricting Violates State Constitution--Limited Ramifications for other Redistricting Cases

The Colorado Supreme Court has just issued this opinion, which determined on state law grounds that once a federal court had redistricted after the last census, it was too late for the state legislature to do so again: "In short, the state constitution limits redistricting to once per census, and nothing in state or federal law negates this limitation. Having failed to redistrict when it should have, the General Assembly has lost its chance to redistrict until after the 2010 federal census."

The court briefly discusses whether the federal constitution would prohibit re-redistricting (and canvasses the law in other states on the question under state constitutions), but does not reach the question.

Though the Colorado case does not bear directly on the Texas re-redistricting case (going to trial later this month), or the Vieth redistricting case (to be heard next week by the Supreme Court), the opinion does include a section on "public policy" that could persuade some courts on similar questions: "The framers knew that to achieve accountability, there must be stability in representation...Our interpretation of Article V, Section 44, of the Colorado Constitution supports these notions of accountability and fairness. Limiting redistricting to once every ten years maximizes stability. ...If the districts were to change at the whim of the state legislature, members of Congress could frequently find their current constituents voting in a different district in subsequent elections. In that situation, a congressperson would be torn between effectively representing the current constituents and currying the favor of future constituents."

The dissent took the position that the court-ordered redistricting did not prevent the general assembly from re-redistricting in the same decade: "When districts are not constitutionally adequate, courts may fashion a remedy to protect aggrieved voters in an upcoming election. However, never has the U.S. Supreme Court held that a court-ordered plan preempts a legislature from attempting to correct a deficiency by passing its own redistricting plan."