"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.

"Group Plans to Challenge Law on Blackout Period for Ads"

The New York Times offers this report. You can find the group's press release here. Marty Lederman weighs in here on why there are reasons to believe the suit may well be rejected.

Let me offer another: the kind of challenge plaintiff is bringing here is an "as applied" challenge to the blackout period. (The Supreme Court upheld a facial challenge to that blackout period in the McConnell case.) In my forthcoming Penn Law Review article on McConnell, I argue that the Supreme Court appears to have foreclosed such as-applied challenges (a result I am not necessarily sure is a good one).

Nader Sues to Get on Illinois Ballot

See here.

John Fund on DRE Security and the Democrats

See here. Thanks to Dan Lowenstein for the pointer.

What if we need a recount of touchscreen votes in Florida?

Don't miss this New York Times report.

Are Michael Moore and the NRA News Different?

Bob Bauer responds here. I am not convinced by Bob's distinctions. Why is it corporate speech when the NRA (a grassroots organization) speaks but it is individual speech when Michael Moore speaks? Moore, of course, is not funding ads for his movie himself. They are paid for by a foreign corporation.

There may be good reasons to exempt both (or neither) from the electioneering communications provisions. But I don't think the distinction Bob draws is persuasive.

UPDATE: A reader writes:

It's actually anti-persuasive; Violate Moore's rights, and you violate the
rights of one man. Violate the NRA's rights, and you're violating the rights
of four million men and women.

After all, it's not like the NRA exists for some completely different
purpose, and it's resources have been hijacked to advance an agenda the
corporation's members wouldn't agree to. That's a fair description of
Moore's case! The NRA exists specifically to give it's members a voice in
instances like this.It's not a hijacking, it's more of a charter flight...

UPDATE 2: Bob posts here what he characterizes as his "last word." He still does not grapple with the fact that Moore's spending is being done by a corporation, and a Canadian one at that.

"Incomplete Disclosure: IRS filings show few penalties for political committees that fail to meet requirements"

The Center for Public Integrity has issued this report on 527s.

Manipulation of Write-In Rules in Florida to Close Primaries

See this fascinating report in the Sun-Sentinel.

"Foes Ask Court to Toss Prop. 60 from Ballot"

The Sacramento Bee offers this report. See also this A.P. report. [Note: I am assisting the petitioners in this case.]

"Hot Parties Rarer in Post-BCRA Era"

Roll Call offers this report (paid subscription required). A key snippet: "Without soft money, the political parties can no longer afford to throw lavish parties at their quadrennial political conventions....That means no Bruce. No Britney. Not even Justin Timberlake. "

527 Coverage

The Hill offers Parties' Loss is 527s Gain. See also this Roll Call report. The Wall Street Journal offers In Fallout from Campaign Law, Liberal Groups Work Together. Thanks to Steven Sholk for the last link.

Sifry and Watzman on Convention Corporate Funding

See this Los Angeles Times oped.

Paul Krugman Column

See Fear of Fraud, which concerns electronic voting and related controversies.

"New Complaint is Filed Against Falwell Website"

The New York Times offers this report.

"ACLU Argues Punch Cards Could Affect Vote"

A.P. offers this report from Ohio.

Election Law Casebook Table of Contents Now Posted

You can find the table of contents for Lowenstein & Hasen, Election Law--Cases and Materials (3d edition forthcoming August 2004) here. For more detail on getting page proofs to prepare for classes, see here.

ELJ 3:3 Table of Contents; Preview of ELJ 3:4

You can find the table of contents for the just released Election Law Journal Volume 3, Issue 3 here. (This is the special symposium issue on North American Election Law.)

Look for ELJ 3:4 in October, featuring John Fortier and Norm Ornstein on terrorism and presidential elections, William Mayer and Andrew Busch on frontloading primaries, Rick Hasen on Vieth and judicially manageable standards for gerrymandering, Jim Gardner on Vieth and the role of state courts in crafting judicially manageable standards, Michael Bailey on campaign finance reform, Eric Lane on New York City term limits, Rick Pildes reviewing Judge Richard Posner's Law, Pragmatism, and Democracy, with a response by Posner, and Terri Bimes reviewing Chief Justice Rehnquist's book on the contested 1876 election.

We welcome the submission of articles. A revised set of procedures for peer review submission appears here.

Boston Globe Profile of Jim Jordan and His 527 Activity

See here. See also this Minnesota Public Radio report on 527 activity in Minnesota.

"Despite Predictions, BCRA Has Not Been a Democratic 'Suicide Bill'"

Tony Corrado and Tom Mann offer this Roll Call oped. A snippet:

After 18 months of experience under the law, the fundraising patterns in this year’s election suggest that these concerns were greatly exaggerated. Money is flowing freely in the campaign, and many voices are being heard. The political parties have adapted well to an all-hard-money world and have suffered no decline in total revenues. And interest groups are playing a secondary role to that of the candidates and parties.

The financial position of the Democratic party is strikingly improved from what was imagined a year ago. Sen. John Kerry (D-Mass.), who opted out of public funding before the Iowa caucuses, will raise more than $200 million before he accepts his party’s nomination in Boston. The unusual unity and energy in Democrats’ ranks have fueled an extraordinary flood of small donations to the Kerry campaign, mainly over the Internet. These have been complemented by a series of successful events courting $1,000 and $2,000 donors.

Law.com coverage of Ohio punch card lawsuit going to trial

See here. Thanks to Steven Sholk for the pointer.

"Politicians Now Wear Big Money as a Badge of Honor"

Jeffrey Birnbaum offers this column in the Washington Post.

"GOP Panel Backs Open Primaries"

The Kansas City Star offers this report.

"The Unseen Voters: Absentee Ballots Could Prove Crucial This Year"

Barrons offers this report. Thanks to Steven Sholk for the link.

"For Corporate Donors, the Restraints are Off"

The New York Times offers this report.

"Recount May Be Heading to Tex. Supreme Court"

The Washington Post offers this report.

"Voters Who Swap their Check for Cash"

The Washington Post offers this report.

Must-Read on Kerry Fundraising

The Washington Post offers Redefining Democratic Fundraising on John Kerry's fundraising. Here is a snippet of the highlights:

• Lawyers, especially trial lawyers, are the engine of the Kerry fundraising operation. Lawyers and law firms have given more money to Kerry, $12 million, than any other sector. One out of four of Kerry's big-dollar fundraisers is a lawyer, and one out of 10 is an attorney for plaintiffs in personal injury, medical malpractice or other lawsuits seeking damages.

• Much of the seed money for the Kerry presidential campaign was collected through donors to his Senate campaigns, including lobbyists with interests before two of the Senate committees on which Kerry serves: the Finance Committee and the Commerce, Science and Transportation Committee.

• Fueling Kerry's money surge havebeen credit card collections on the Internet, a technique pioneered by his onetime rival Howard Dean in 2003 but used with even greater success this year by the presumptive Democratic nominee. Kerry has been raising more than $10 million a month on the Internet, for a total of more than $65 million, compared with $8.7 million for Bush in the past year, according to officials with both campaigns.

• Kerry appears to have succeeded in creating a new class of donors for the Democratic Party. Dozens of his fundraisers are relative neophytes in big-money politics and have not been active in making their own contributions. A review of federal campaign contributions of the big Kerry fundraisers shows that one-third of them have not made more than $20,000 in campaign contributions since 1990.

• Kerry's donor base is overwhelmingly bicoastal. Almost half of the big-money fundraisers hail from either California or New York. Seventeen of the fundraisers are from Kerry's home of Massachusetts. Kerry has substantially outraised Bush in California and New York, $39.7 million to $28.5 million; Bush has crushed the Democrat in Florida and Texas, $36 million to $8 million.

Article on Voter Registration Activities of Democratic-leaning 527s

See here.

"Seeing Double on Ballot: Similar Names Sow Confusion"

The New York Times offers this report, which begins: "José E. Serrano encountered a slight impediment on the way to being re-elected to Congress from the Bronx. It was Jose Serrano, an unemployed former loading dockworker with the same name, who had decided that he, too, wanted the Congressional seat."

Delegate Blog

My friend and former boss David Ettinger is blogging as a delegate from the Democratic convention for the Ventura County Star. You can access his blog posts here. The newspaper will also have delegates blogging from the Republican convention in September.

"Kerry Repays Campaign Loan"

The New York Times offers this report.

"The 2004 Election: What Does it Mean for Campaigns and Governance?"

From Beth Garrett:

The USC-Caltech Center for the Study of Law and Politics and the Initiative and Referendum Institute at USC have organized a conference on October 8 called "The 2004 Election: What Does it Mean for Campaigns and Governance?" Held at the USC Law School on the eve of the election, the conference will bring leading scholars in law, political science, economics, and public communication together with people working in politics and campaigns to discuss major trends that are evident in the November election and that will shape politics into the next decades. The conference will include a keynote address delivered by Senator Bob Graham of Florida during lunch. The day-long conference will consist of four panels on the following topics: Campaigns under BCRA; Political Communication, the Media, and the Internet; the Role of Initiatives and Referendums in the Election; and Polarized Voters and Politics. Each panel will be a mix of scholars and political commentators (including Vice-Chair Ellen Weintraub of the Federal Election Commission), and we anticipate a lively discussion among the panelists and the audience. I have included the list of participants in this email and you can see the schedule of the conference at our webpage http://lawweb.usc.edu/cslp/conferences/Election_04/election_04.html. If you would like to attend or have any questions, feel free to contact me.

The 2004 Election: What Does it Mean for Campaigns and Governance?

Friday, October 8; USC Law School
Room 1


Keynote Address: Senator Bob Graham (D-FL), to be given at lunch


Panels

The First Campaign under BCRA's Rules

Ellen Weintraub, Vice-Chair of the Federal Election Commission

D. Bruce La Pierre, Professor of Law, Washington University -- St. Louis; Counsel for Respondents in Nixon v. Shrink Missouri Government PAC

David Magleby, Distinguished Professor of Political Science, BYU; Director, Center for the Study of Elections and Democracy

Spencer Overton, Associate Professor of Law, George Washington University Law School

Moderator: Elizabeth Garrett, Professor of Law, USC; Director, USC-Caltech Center for the Study of Law and Politics


The Initiative and Referendum Process

Garry South, political consultant; former Senior Political Advisor to Governor Gray Davis (D-CA) and the presidential campaign of Sen. Joseph Lieberman (D-CT)

Tracy Gordon, Research Fellow, Public Policy Institute of California

John Matsusaka, Professor of Business and Law, USC; President, Initiative and Referendum Institute at USC

Daniel Smith, Associate Professor of Political Science, University of Florida

Moderator: M. Dane Waters, Founder and Chairman of the Board, Initiative and Referendum Institute at USC


Polarized Voters and Politics

Mickey Edwards, Lecturer of Public and International Affairs, Woodrow Wilson School, Princeton University; former Member of the U.S. House of Representatives (R-OK)

R. Michael Alvarez, Professor of Political Science, Caltech; Associate Director, USC-Caltech Center for the Study of Law and Politics

Gary Jacobson, Professor of Political Science, University of California -- San Diego

Janelle Wong, Assistant Professor of Political Science, USC

Moderator: Ann Crigler, Professor of Political Science, USC; Director, Jesse M. Unruh Institute of Politics


Political Communications, the Media and the Internet

David Brock, President and CEO, Media Matters for America

John Fund, Editorial Board of the Wall Street Journal

Thomas Hollihan, Professor and Associate Dean for Academic Affairs, Annenberg School for Communication, USC

Vincent Price, Steven H. Chaffee Professor of Communication and Political Science, University of Pennsylvania

Moderator: D. Roderick Kiewiet, Professor of Political Science, Caltech


Concluding Cocktail Party and Watch Party for the First Presidential Debate

"Clarity Sought on Election Law"

A.P. offers this wonderfully-titled post, with the following subhead: "St. Louis officials will ask court to determine whether or not early voting will be allowed."

"Democrats File Challenge to Nader Candidacy in Michigan"

A.P. offers this report.

"The Amazing Money Machine"

Businessweek offers this report on Democratic fundraising.

Bob Bauer Responds to My Characterization of His "Not Suprising" Position on Political Documentaries

See here. What would be surprising would be if Bauer took the same position he takes in this post with an electioneering communications exception for corporate-funded NRANews.

"Kerry's Costly Loan"

The Washington Times offers this editorial.

"Nader Sues to Get on the Ballot in Texas"

A.P. offers this report.

"A Bad Sign for Voters"

More Florida confusion? See here.

"Darrow Group Seeks Exemption from McCain-Feingold"

See this A.P. report.

Bloomberg News on the Current State of Campaign Finance

See here.

"Campaign Finance Reform, 'Big Money,' and Politics"

NPR offers this audio report.

Advice to Heed to Avoid Lost Votes

The Caltech-MIT Voting Technology Project has just released Immediate Steps to Avoid Lost Votes in The 2004 Presidential Election. It should be required reading for every elected official in the U.S.

Campaign Finance Exemption Given to Freedom Socialist Party

The Federal Distict Court opinion is here. Link via Richard Winger.

Election Law Casebook Goes to the Printer

Election Law--Cases and Materials (3rd edition) (Lowenstein and Hasen) is on its way to the printer and should be available some time in August. If you are an instructor using the book in a fall class, send an e-mail to Linda Lacy at Carolina Academic Press (linda-at-cap-press.com) if you need final page proofs to prepare for the first few classes.

Here is the description of the new edition:

The revised third edition of Election Law adds to the second edition's already comprehensive treatment of issues of election regulation and reform. New materials include: coverage in depth of the Bipartisan Campaign Reform (McCain-Feingold) Act of 2002 and of McConnell v. Federal Election Commission, the Supreme Court's decision upholding most of the BCRA and pointing the way toward the constitutional law of campaign finance in the 21st century; coverage of recent developments in redistricting, voting rights and racial gerrymandering, including the 2004 Pennsylvania redistricting decision, the Supreme Court's first consideration of partisan gerrymandering since 1986; and a streamlined treatment of legal and political issues related to the Florida recount controversy, together subsequent applications of Bush v. Gore, by the lower courts, including its application in the 2003 California recall election.

Like its predecessor, Election Law, 3rd edition covers the right to vote and voter turnout, legislative districting, the Voting Rights Act and the racial gerrymandering cause of action, ballot propositions, constitutional rights and obligations of political parties, bribery, regulation of campaign speech, campaign finance, and term limits.

This interdisciplinary book is unparalleled in its combination of materials drawn from law and political science. Lowenstein and Hasen include edited versions of most of the Supreme Court's most important election law decisions of the last four decades, as well as a generous sampling of lower federal court and state decisions, many raising novel and challenging issues.

The book is intended to give students, legislators, attorneys and general readers a more sophisticated understanding of issues central to citizenship in a democracy. A teacher's manual is available and cumulative supplements will be provided, typically on an annual basis.

"Law violations claimed in Nader's Oregon campaign"

A.P. offers this report.

Dorf on Elections and Terrorism

See his Findlaw column here.

"Democrats Outraising GOP This Year"

The Washington Post offers this report. See also this Wall Street Journal report. See also this Baltimore Sun report.

"San Francisco May Give Foreigners Some Voting Rights"

Reuters offers this report.

New election law article

I just received in the mail a reprint of Stephen A. Siegel, The Conscientious Congressman's Guide to the Electoral Count Act of 1887, 56 Florida Law Review 541 (2004). Let's hope that conscientious members of Congress will not need to consult this article following this year's elections.

Should John Kerry Embrace McCain-Feingold in his Acceptance Speech?

See here.

Kerry to repay personal loan

Details here. Link via Politicalwire.com.

Bob Bauer Petitions FEC to Grant Exception for Ads Promoting Political Documentaries

In light of "Fahrenheit 9/11," this is not surprising. You can find the filing here.

Eleventh Circuit Grants Rehearing En Banc in Voting Rights Act Felon Disenfranchisement Case

The order is here. Thanks to Howard Bashman for the pointer.

New York Felon Disenfranchisement Suit Dismissed

See this Demos press release. Thanks to Doug Greene for the pointer.

"Lawmakers Approve Donation Limits"

See this report from North Carolina.

McCain on FEC reform

See here.

"A Mangled Interpretation of Campaign Finance Law"

The Journal Times (Wisconsin) offers this editorial on Russ Darrow: car dealer and candidate.

"Lawmakers Want No Election Postponements"

A.P. offers this report. See also this Roll Call report.

New Election Law Resource

I have added Election Law @ Moritz to my list of election law resources on the right side of the blog. You can find Ned Foley's initial post here.

"Voter Fraud Penalties Minimal"

See this report from Florida.

"Campaign Finance Squabble"

Roll Call Heard on the Hill column begins: "Sen. John 'The Finance Reformer' McCain (R-Ariz.), entered the ring with venom and vigor last week during an impromptu Smack Down contest with Federal Election Commission Chairman Bradley 'the Bully' Smith."

The Campaign Finance Institute issued this press release and report yesterday. Today, you can find articles about the CFI report in Boston Globe, Washington Post, and New York Times. See also this New York Times editorial on money in politics.

"Judge Backs State's E-Vote Paper Backup; Disabled Advocates Plan to Appeal Ruling"

The Oakland Tribune offers this report.

"DeLay Chooses Legal Team"

Roll Call offers this report (paid subscription required), which begins: "Facing legal challenges in Washington and Austin, House Majority Leader Tom DeLay (R-Texas) has retained lawyers to defend him in both a Congressional ethics probe and an ongoing investigation into Texas’ 2002 legislative races."

Two New Interesting Harvard Law Review Student Notes on Georgia v. Ashcroft

See "The Implications of Coalitional and Influence Districts for Vote Dilution Litigation," 117 Harvard Law Review 2598 (2004) and "The Ties that Bind: Coalitions and Governance Under Section 2 of the Voting Rights Act," 117 Harvard Law Review 2621 (2004).

"Kerry Could Spurn Public Cash; Fundraisers Insist He Can Raise More than $75 Million"

The Hill offers this report.

Election Law Teacher Database

You can find the current version of the database here. You will also always be able to find a link to the database on the right side of the blog under "Election Law Resources." I'll update this at least once a year.

"New Attack in Open Primary Battle"

The Sacramento Bee offers this report, with the following subhead: "Group seeks to toss legislators' rival measure off the ballot." The challenge is based upon article XVIII, section 1, of the California Constitution, providing that: “Each amendment [the the state constitution placed on the ballot by the legislature] shall be so prepared and submitted that it can be voted on separately." [Disclosure: I am a consultant to Californians for an Open Primary, which brought this lawsuit.]

Punch card ballot dispute in New Rochelle

See here.

"'Soft Money Donors Find New Avenue"

The Milwaukee Journal-Sentinel offers this report.

"Who Funded that Negative Group?"

The Wall Street Journal offers this report, with the following subhead: "Under New Law, It's Often Independent Groups, Not Campaigns." Thanks to Steven Sholk for the link.

"Report: Execs Feel Pressured to Give to Corporate PACs"

NPR offers this audio report.

New Republic Article on Gerrymandering and the Supreme Court

See Legal Reserve by Marisa Katz. Thanks to How Appealing for the pointer.

Napa Vote Fraud Suit Gets Coverage in the New York Times

See here.

Paper on Vieth and Paper on Tennessee v. Lane and the Voting Rights Act Now on SSRN

I have posted two papers on SSRN. The first is Looking for Standards (in all the Wrong Places): Partisan Gerrymandering Claims after Vieth. Here is the abstract:

In 1986, the Supreme Court held that it would entertain claims that a legislative decision to redistrict legislative seats to give unfair advantage to one major political party over the other could violate the United States Constitution's Equal Protection Clause. But the Court's fractured decision in Davis v. Bandemer that such "partisan gerrymandering" claims were justiciable resulted in virtually no successful claims in the lower courts.

In Vieth v. Jubelirer, 124 S. Ct. 1769 (2004), the Court revisited the issue. The case was a 4-1-4 split. Four Justices signed a plurality opinion stating the view that partisan gerrymandering claims should be considered nonjusticiable because of the absence of a "judicially manageable" standard for separating permissible from impermissible consideration of party affiliation of voters in the redistricting enterprise. Four Justices would have adopted one of three invigorated tests to police partisan gerrymandering. Justice Kennedy, writing only for himself, agreed with the four dissenters that partisan gerrymandering cases remain justiciable. But he also agreed with the four Justices in the plurality that the Vieth plaintiffs' claim must fail because no one has articulated thus far judicially manageable standards for partisan gerrymandering claims. He suggested a standard might emerge from historical discussions of districting practices, better computer technology, or shifting to a First Amendment analysis.

Part I of this Article surveys the five opinions in Vieth, focusing on Justice Kennedy's pivotal opinion. Part II explains why Justice Kennedy is unlikely to find a judicially manageable standard for partisan gerrymandering in history, technology, or the First Amendment, given his rejection of vote dilution, expressive harm, conflict of interest, and improper motive tests proposed by the Vieth plaintiffs and dissenters. Finally, Part III endorses Justice Kennedy's decision to leave the door open to future partisan gerrymandering cases. It explains that the judicial manageability debate in Vieth conflates two separate concerns: one about consistency of result across the courts and a second about the justifiability of a standard for judging partisan gerrymandering claims. The consistency of result concern is overblown, because the Court could rather easily come up with an easily administrable partisan gerrymandering standard. But the Court should refrain from coming up with such a standard until it could be justified by an emerging social consensus regarding proper and improper consideration of voter party identification in redistricting. If consensus emerges, the Court may embrace it. Until then, the matter should be left to the political processes, which have a number of tools to control egregious partisan behavior.

The second paper is Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee v. Lane, 66 Ohio State Law Journal ___ (forthcoming 2005). Here is the abstract:

This article considers a single question: does Congress have the power to renew the Voting Rights Act's preclearance provisions, set to expire in 2007? Beginning with South Carolina v. Katzenbach (1966), the United States Supreme Court has upheld preclearance as a permissible exercise of congressional enforcement power. These cases, however, mostly predate the Supreme Court's New Federalism revolution. As part of that revolution, the Court, in a series of recent cases has greatly restricted the ability of Congress to pass laws regulating conduct of the states under its enforcement powers granted in Section Five of the Fourteenth Amendment, which the Court has read as coextensive with its enforcement powers under the Fifteenth Amendment. Moreover, in Board of Trustees v. Garrett (2001), the Court made clear that it will search for an adequate evidentiary record to support a congressional determination that states are engaging in unconstitutional conduct so as to justify congressional regulation of the states. Some of that clarity on the evidentiary question disappeared in the Court's 2003 decision, Nevada v. Hibbs, and even greater uncertainty has been created by the Court's 2004 decision, Tennessee v. Lane.

Part I of this article surveys the legal landscape through the developments in Garrett facing those who wish to defend renewed preclearance as an appropriate exercise of congressional power under the Fourteenth or Fifteenth Amendments.

Part II then turns to the "Bull Connor is Dead" problem: Most of the original racist elected officials are out of power, and those who remain in power (along with any new elected officials who either intend to discriminate on the basis of race or who otherwise would care less about a discriminatory effect in a change in voting practices or procedures on a protected minority group) have for the most part been deterred by preclearance. Thus, there is not much of a record of recent state-driven discrimination that Congress could point to supporting renewal. The question of how much racial discrimination in voting practices there would be today if we suddenly eliminated preclearance is almost too speculative to answer. It is difficult to see how Congress may prove that preclearance remains necessary under the Garrett evidentiary standard.

Part III then then explains how in two recent cases on Congressional power, Nevada v. Hibbs and Tennessee v. Lane, the Supreme Court appears to have backed away from the strict evidentiary standard imposed in Garrett. These cases increase the chances that the Court would hold that Congress has the power to reenact section 5's preclearance provisions, particularly given Justice Scalia's separate opinion in Lane in which he indicated his new position that Congress has broad latitude to pass legislation aimed at combating racial discrimination. In addition, the Supreme Court's recent opinion in Georgia v. Ashcroft, construing the statutory standard for granting preclearance, takes more pressure off constitutional challenges to a renewed preclearance provision.

Part IV concludes in a more speculative vein with a look at an alternative basis for congressional power to reenact preclearance: the Guarantee Clause.

Blogger credentials at conventions

See this Washington Post report.

"Activist: E-Voting to be a Train Wreck"

A.P. offers this report on Bev Harris.

Dan Walters Looks at California's Political Reform Act at 30

See here.

"Extra-Special Interest in Political Conventions"

The Los Angeles Times offers this report, with this subhead: "With new limits on gifts to parties, more money flows to private bashes and host committees."

"Small Donors Giving Big Boost to Campaigns"

The Fort Wayne Journal-Gazette offers this report.

More Pildes on Larios

See here.

"Nader Backers Abandon Ariz. Ballot Effort"

A.P. offers this report.

The Supreme Court's term

There are a number of retrospectives now coming out on the Supreme Court's term which just ended. Howard Bashman has been linking to the journalistic accounts, and SCOTUSblog has complied some very interesting statistics on Justices voting together. Eugene Volokh has a nice chart on the Justices and the First Amendment.

Also, don't miss Larry Solum's Swing Votes, Making Things Come Out Right, and the Virtue of Justice.

"Sex and Politics"

Believe it or not, this Wall Street Journal editorial with this title discusses McCain-Feingold, Fahrenheit 9/11, and NRANews. Thanks to Steven Sholk for the pointer.

"AG Says Primary Law May Bring Challenge"

See this news from Guam.

"Felon Voter Lists Made Public"

The St. Petersburg Times offers this report, with the subhead: "While elections officials and the media scramble to review the list, the judge's ruling might have farther-reaching effects."

"As Democrats Look Away, Unions Flout Campaign Finance Laws"

Linda Chavez writes this Los Angeles Times oped.

"Out with Gerrymanders!"

Herman Schwartz offers this commentary over at The Nation.

"Fahrenheit 9/11," NRANews, and the Media Exemption: Should Michael Moore, the NRA and Others Get a Pass from McCain-Feingold's Electioneering Communications Provisions?

The continued blurring of the lines separating entertainment, politics, and news has become very evident as Michael Moore’s anti-Bush movie “Fahrenheit 9/11” hit the theaters, and as the National Rifle Association began its three-hour news and commentary program on the Sirius satellite radio network. The movie has already led, and and NRANews likely will lead, to campaign finance complaints being filed with the Federal Election Commission. The complaints raise a question at the core of the First Amendment: should we give special treatment to news media corporations?

One of the core campaign finance provisions of the new McCain-Feingold campaign finance law prevents corporations or labor unions from spending corporate or union funds on “electioneering communications.” These are broadcast advertisements aired within 30 days of primaries or party conventions or 60 days of the general election that feature a candidate for federal office. So, General Motors or the AFL-CIO could not run a television or radio ad mentioning President Bush or Senator Kerry during the electioneering communications window unless they paid for the ads through a separate special PAC.

But the law contains an exception for the news media corporations. So, when Tom Brokaw, Bill O’Rielly, or Al Franken mention the names of Bush or Kerry on corporate-owned television or radio networks, the electioneering communications provision does not apply. Indeed, a similar dichotomy applies to print media: the ExxonMobil Corporation or the AFSCME union cannot pay for a newspaper advertisement saying “Vote for Bush” or “Vote for Kerry,” but the Los Angeles Times can print an endorsement using the same words and paid for with Tribune Corporation money.

The Michael Moore film itself is not an electioneering communication (because it is in theaters, not on television, radio, cable, or satellite) but advertisements for the movie on radio or television feature President Bush and may well be broadcast in the electioneering communications window. NRANews is not a longstanding news and commentary program, like the O’Rielly Factor, but is instead a package of campaign-related news and commentary being prepared, according to press reports, only through Election Day.

Opponents of Moore or the NRA (and we know there are many of both) want to use campaign finance laws to keep them from the airwaves. The campaign finance statutes do not directly answer questions like these: If nothing in campaign finance law prevents theaters from running a documentary criticizing the President during the election season, should the law prevent the broadcast of advertisements publicizing the documentary? How much like a regular news program must NRANews be to fit under the exception for news and commentaries?

As the Federal Election Commission likely grapples with these questions in the coming weeks, following a complaint filed against Moore's distributors by a conservative group, First Amendment concerns will bubble just beneath the surface. The Supreme Court has said that a congressional exception to campaign finance rules for media corporations is justified, because of the “unique role that the press plays in informing and educating the public, offering criticism, and providing a forum for discussion and debate.”

But surely some of “the press” does not play that role (or play that role well), and others outside “the press”—including Moore and the NRA—may play that role too. And what of the Internet? Should Congress decide to extend electioneering communications rules to political internet advertising in the next election season, when the Internet will be bigger than ever, will it craft another media exception? Will that exception include bloggers and other non-traditional websites, many of which educate the public, offer criticism, and provide a forum for discussion and debate?

In the past, campaign finance reform opponents have used the media exception to argue against all limits on corporate and union speech: why silence GM when Rupert Murdoch may spend unlimited sums to support or oppose candidates through his newspapers and television stations? (Indeed the Murdoch-owned New York Post first editorialized last week that Moore's ads should be barred under campaign finance laws, but then abruptly reversed course.) But the public likely would not want to tolerate unlimited corporate and union spending intended to influence the outcome of federal elections.

An alternative Congress could consider is to repeal the media exception. Such an approach has the advantage that no one would have to distinguish between “the press” and everyone else. But there are obvious First Amendment costs associated with this approach. Indeed, one suspects that the major newspapers’ support for campaign finance reform would dry up rather quickly if newspaper editorial writers were subject to the same limits as GM: financing their editorials endorsing candidates for federal office through separate PACs. Treating media corporations as other corporations is not on the table right now.

Faced with two unpalatable choices—unrestrained corporate and union spending on elections or repealing the media exception—Congress and the Federal Election Commission are likely to continue to muddle through, crafting ever more sophisticated tests for distinguishing “the press” from everyone else. Under those tests, the Michael Moores and NRANews will sometimes act at their own peril.

The best short-term solution is for the FEC is to engage in some convoluted line-drawing. It should use its regulatory powers to protect political actors like Moore and the NRA: broadcast advertisements promoting a bona fide political commentary (in a documentary, book, or otherwise) should be exempted from the electioneering communications provisions, and the test for what constitutes a bona fide news and commentary program under the media exemption should be read broadly to include even election-related programs such as NRANews.

The new line-drawing has a danger: it might encourage more corporations and unions to put on sham news programs or broadcast advertisements supporting or opposing a candidates for public office under the guise of sham advertising for a book or movie. For this reason, FEC regulations are only a temporary solution.

In the long run, Congress should consider if an exception for media corporations and such corporations alone continues to make sense. The media exemption may indeed become the next battleground for campaign finance reform.

"Michael Moore Meets McCain-Feingold"

The National Journal offers this report (paid registration required). Bob Bauer responds here.

Lying About Lying in Campaigns

The Duluth (Minn.) News offers New Law Fines Candidates for Filing False Complaints, which begins: "One of the oldest dirty tricks in Minnesota politics may soon bite the dust. A favorite tactic of unscrupulous candidates has been to file complaints with county attorneys falsely accusing their opponents of lying in their campaign literature. The county attorneys are required by law to investigate whether the charges have any merit or not. Then the complaining candidate runs around telling voters that his opponent is under criminal investigation for breaking campaign laws. But a new law that takes effect today may put a stop to that tactic. The law will speed up investigations of complaints and make people who file frivolous or malicious grievances foot the bill."

"It's Campaign Reform v. Free Speech"

James Pinkerton offers this Newsday oped on the Michael Moore campaign finance controversy. Pikerton incorrectly characterizes the scope of the portion of McCain-Feingold at issue in the controversy. For a suggestion coming from the far left in Counterpunch, see this suggestion: Moore "should hire either the most incompetent or rightwing-politically-biased legal representation available to defend him against these charges....If Moore launched a thoroughly incompetent legal defense to these charges and lost he could take a significant step towards establishing more balanced news coverage on the American airwaves."

Two Washington Post reports of interest

See Bush Campaign Reaches Out to Church-goers and Republicans Name 62 Who Raised Big Money.

"Justices Allow Redistricting in Georgia"

The New York Times offers this report. The A.P. report is here. The Atlanta Journal-Constitution report is here.

"Odd Alliances Form In Effort to Place Nader on the Ballot"

The New York Times offers this report.