"No on 77" White Paper

I have just received a copy of this white paper from a committee opposing the passage of Prop. 77. The Chairman of "No on 77" is Dan Lowenstein and the committee's campaign consultant is Berman & D'Agostino Campaigns.

I should add that I have not taken a position on 77 and I'm not sure how I will vote on it. Though Dan and I have a lot of projects together (a casebook, the election law listserv, and the Election Law Journal), we often disagree about both political and legal issues.

Responding to Brad Smith on the Spending Limits Question

Maybe it is my head cold that is clouding my judgment, but if Brad Smith is offering 80:20 odds on the Supreme Court upholding spending limits in candidate campaigns in the Vermont case I'd be willing to wager a substantial sum on the other side.

I agree with Marty Lederman's read of the Court from his earlier post today. I count at most four votes to uphold spending limits even under a much more narrowly tailored (and less draconian) law than Vermont's----and I would be quite unsure as to whether to put Justice Souter in there as the fourth vote.

Is Brad suggesting that either Chief Justice Roberts or Justice O'Connor's replacement would provide a fifth vote in this direction? I find this incredibly hard to believe, given the Chief's recent answer to Judiciary Commitee questions that he joined the Reagan and Bush II administrations because he generally agreed with their policies. People who generally agree with those administration's policies are not even likely to vote to uphold contribution limits, and are fairly likely (but for respect for existing precedent) to strike down longstanding spending limits in the corporate and union context. But to uphold candidate spending limits? I cannot see it happening with this change of the Court (even though, like Brad, I predicted a move in that direction if the current Court stayed the same, with the big question being whether Justice O'Connor would come along for the ride).

Why would the Court have granted cert if a majority liked the spending limits? Rather, if you are Gingburg, Breyer, or Stevens, you don't want this case heard, and you want things to percolate in the states for a while, showing that spending limits can indeed work. My guess is that the votes to grant cert. came from Kennedy, Scalia, Thomas and O'Connor, with the first three gambling that the new Chief and O'Connor's replacement are likely to vote with them, even if those two would not go even further (as Thomas and Scalia and possibly Kennedy would) in striking down contribution limits as well.

It is indeed an odd day when Brad wants to play Bonifaz, Eugene is offering NVRI advice, and I'm saying I'd like to be in Jim Bopp's shoes.

UPDATE: Brad Smith clarifies that he is not making his 80:20 prediction based upon current court personnel. I apologize for misreading his original remark.

Tokaji on Andrew Young, Spencer Overton, and Voter ID

Don't miss this post.

NYT Editorial Page Endorses Regional Primaries, But Only Grudgingly Acknowledges Source of Idea

See here. The source is the Carter-Baker commission report.

Tokaji on Election Reform

Dan Tokaji has posted Early Returns on Election Reform (forthcoming George Washington Law Review) on SSRN. Here is the abstract:

The United States was fortunate to avoid another protracted post-election fight in 2004. Although the Help America Vote Act of 2002 (HAVA) promised substantial changes in the way that elections are conducted in the United States, these changes in federal law did not prevent serious problems from occurring in Ohio and other states. The only reason that these problems did not lead to another contested election is because the margin of victory exceeded the margin of litigation. This Article examines how the changes commonly referred to as election reform contributed to the difficulties that emerged in 2004, focusing especially on Ohio's experience with respect to voting equipment, voter registration, provisional voting, ID requirements, challenges to voter eligibility, and polling place operations. The article then considers what should be done to deal with the problems that the 2004 election revealed, drawing five lessons for the future: (1) while HAVA's changes with respect to voting equipment have had a beneficial effect, there is a continuing need for improvement in those states that have not yet upgraded their technology; (2) pre-election litigation challenging election administration practices should be brought as far in advance of election day as practicable; (3) courts should act swiftly in issuing injunctive relief where it is appropriate; (4) states should prescribe clear rules governing the administration of elections, as far in advance of election day as possible; and (5) courts should take a skeptical view of election administration rules that are promulgated unilaterally by partisan election officials, as opposed to those enacted by the legislature or by some other bipartisan or nonpartisan body.

"Rell Calls Legislators Into Special Session"

A.P. offers this report from Connecticut, which begins: "Gov. M. Jodi Rell is calling state legislators back to the Capitol next month to vote on a plan for reforming Connecticut's campaign financing system." Thanks to Dewey Dow for the pointer.

Richie on Competitiveness of California Legislative Districts Under Prop. 77

Responding to the Rose Institute report, Rob Richie offers these thoughts on the election law listserv. He suggests that we would see much less competitiveness than suggested by the report.

"GOP Files Complaint Against Nunez, Dems"

John Myers has this post on Capital Notes, which begins: "The state Republican Party has accused Assembly Speaker Fabian Nunez (D-LA) and five other Democrats of breaking campaign finance rules, by shifting large sums of money from candidate controlled committees to a ballot measure committees."

"Daniel Weintraub: How Prop. 77 would boost political competition"

See this Sacramento Bee column.

"Louisiana Political Storm Brewing"

Roll Call offers this fascinating report (paid subscription required). So far I have seen very little talk about how expected shifts in population could make Louisiana a more solid Republican state, with national implications for Congress.

The New York Times, Chief Justice Roberts, and the Vermont Campaign Finance Limits Case

The position of the New York Times editorial board on the two campaign finance cases the Supreme Court will hear is unsurprising; the board has been a big supporter of the constitutionality of campaign finance regulation. But I was struck by this passage in today's editorial:

[The Vermont case] may be one of the first indications of what kind of chief justice John Roberts will be. At his confirmation hearings, he expressed his commitment to "judicial modesty" and his respect for established precedent. If he is true to those principles, deference to Vermont's Legislature and respect for Buckley should lead him to resist any entreaties by Justices Scalia and Thomas to dismantle the campaign finance law.

The point about deference to the legislature is fine (though I have my own views on when such deference is appropriate that I've written about in detail elsewhere). But to say that respect for Buckley v. Valeo should lead the new Chief to uphold spending limits applied to candidates is ludicrious. If the judge wishes to respect precedent, he should vote to strike down the spending limits. Buckley held that candidate spending limits are unconstitutional, and it would take a change in the law to uphold the Vermont limits. We can debate whether such a change is warranted; but it is incorrect to view Buckley the way the Times editorial does.
The real argument for respecting established precedent, and the real test of the new Chief Justice, as I have written, will come in the Wisconsin case. Suppose (as I think is a reasonable assumption) the new Chief believes limits on spending by corporations and unions in elections violate the First Amendment. Does he vote then to overrule the 1990 Austin case and the 2003 McConnell (McCain-Feingold) case to reach this result?

Andrew Young on Carter-Baker

See this letter to the editor in the New York Times. Meanwhile, Spencer Overton's Roll Call oped on Carter-Baker is available without a subscription here.

"Court to revisit campaign-finance debate"

Tony Mauro offers this analysis for the First Amendment Center.

Interesting Articles in Public Choice on the Electoral College, Voting Technology and the Elderly, and Problems of Voting

You can find the table of contents here.

John Bonifaz is Wildly Over-optimistic (at least in Public) About His Chances of Getting the Supreme Court to Accept the Constitutionality of Spending Limits

See here. Justice Kennedy? No chance.

Fuentes-Rohwer on the VRA

Luis Fuentes-Rohwer has posted Staring Down the Revolution: On Federalism, Congressional Powers, and the Upcoming Extension of the Voting Rights Act on SSRN. Here is the abstract:

In enacting the Voting Rights Act of 1965, Congress sought to overcome decades of neglect and outright refusal to enforce the Fifteenth Amendment. Well aware of the severe nature of the means chosen to accomplish this worthy end, Congress put a five year termination date to its coverage formula under the Act. Yet extensions soon followed, to the point that these temporary provisions have become for all intents and purposes permanent features of the American political landscape. This is a significant development, for these intrusive federal requirements were initially justified as, inter alia, temporary measures. We can pretend no longer. And as a result, the Supreme Court will face what promises to be the stiffest challenge to its federalism revolution of late. If the federalism revolution means anything, the Court must strike down a new extension of the Act. But, as this Essay concludes, the Court will not have the will to overturn one of the crown jewels of the civil rights movement. This will be a momentous occasion, for it will offer further proof that the Court knows when to pick a fight and when to back off.

"Bush Picks May Tip Court Against McCain-Feingold"

The Wall Street Journal offers this report on yesterday's orders by the Supreme Court agreeing to hear two election law cases. Thanks to Steven Sholk for the pointer (See here for links to my earlier commentary on these cases).

You can also find coverage in the New York Times; the Washington Post; the Los Angeles Times; Roll Call (paid subscription required); USA Today; AP; and Bloomberg News. Bob Bauer offers some commentary.

"For Shame: To Get Election Reform, Rank the States"

Heather Gerken offers this commentary at The New Republic Online (free, but registration required). It begins:

Yesterday, the Election Assistance Commission (EAC) released the results of a national study of election practices. Created in the wake of the 2000 presidential election, the commission is charged with improving how elections are run. Unfortunately, Congress gave the new agency a modest mandate, little money, and less clout. The EAC has been so embattled that the National Association of Secretaries of State demanded that Congress dismantle it before all of its members had even been appointed (a request that, fortunately, was not granted).

Still, even without the authority accorded to most federal agencies, the EAC can get something done. In politics, information is power, and the EAC is uniquely suited to use that power to catalyze reform. The study released yesterday, which documents election practices in different states and localities, is an important first step. But it also presents much of its information in disaggregated and difficult-to-navigate form, and it does not provide a full set of comparative rankings on every issue that matters to voters.

Now the EAC should use its data to create explicit, comprehensive rankings of states and localities, shaming those local governments that are doing a poor job of running elections and rewarding those that are excelling. It's a strategy taken directly from the playbook of some human rights and environmental organizations, which have long used rankings to prod nations into improving their practices. The strategy works for a simple reason: No one wants to be at the bottom of a list.

"The Carter-Baker ID Card Proposal: Worse Than Georgia"

Spencer Overton has written this Roll Call commentary (paid subscription required). It begins:

In unveiling the Carter-Baker Election Reform Commission’s proposal on voter identification, former President Jimmy Carter condemned Georgia’s recently enacted voter ID law. He labeled the Georgia law — which makes government-issued photo ID an absolute requirement to vote — a discriminatory poll tax that should be “overthrown by the courts.” He tried to distinguish the Carter-Baker ID proposal by asserting that it had adequate safeguards to ensure that legitimate voters would not be excluded.

But the Carter-Baker proposal is more exclusionary than any state ID law — including Georgia’s.

Just under half the states require ID to vote, and most of these states accept a long list of non-photo ID such as a utility bill, bank statement, government check or paycheck. About a dozen of these ID states allow voters without ID to prove their identity by signing an affidavit or reciting information such as birth date and home address.

The Carter-Baker ID proposal would phase out the affidavit safety net and limit the forms of permissible identification to a “Real ID” card. If Georgia adopted the Carter-Baker ID proposal, voters would no longer be able to vote using a U.S. passport, military ID card, student ID card from a Georgia state university, government employee ID card or tribal ID card.

More commentary from Overton on the report is available here.

USC Policy Institute Report on Prop. 77

You can find it here. Meanwhile, there were some news reports yesterday about the Rose Institute report on Prop. 77. See the articles Google has aggregated here.

Taylor on Judge Roberts and the Voting Rights Act

See this National Journal column. Thanks to Chuck Bell for the pointer.

"Election ruling may allow third-party attack ads"

The Miami Herald offers this report, with the subhead: "The Florida Division of Elections has ruled that third-party groups are not affected by most campaign finance limits. The ruling means they can fund ads that do not explicitly endorse a candidate."

EAC Releases Major Survey on Election Administration

You can find links to the report, and some perspective on it, in posts here and here on Election Updates (Alvarez and Hall).

Andrew Gumbel on Cathy Cox, Diebold, and Georgia's Election Process

See this very interesting post at the Huffington Post.

"Officials: Recount law is obsolete"

See this report from California, which begins: "Elections officials across California are waging 11th-hour opposition to using paper records for verifying electronic ballots, partly arguing that the printouts — as well as the electronic voting machines themselves — are vulnerable to fraudulent programming. Writing to the governor recently, the California Association of Clerks and Elections Officials suggested that fully computerized, touchscreen voting machines, known as Direct Electronic Recording devices or DREs, should not be checked by recounts, the method used for all other voting technologies in the state."

Rose Institute Report on California Redistricting Initiative

You can find it here.

"Are Your Elections Free and Fair?"

Robbin Stewart pointed me to this BBC News report, about The Gallup International Voice of the People Poll 2005. One of the questions asked around the world is "Are your elections free and fair?" The article reported that 55% of North Americans (U.S. and Canada) answered yes to this question, but the published poll results did not break down the U.S. and Canada numbers.

I have had Loyola's librarians contact the Gallup International organization, and I have obtained permission to post their country by country results for this question. You can find these results of the Gallup International
Voice of the People 2005 survey here. On page 27, you will see that 66% of Canadians answered the free and fair question affirmatively, compared to 54% of USA residents. I had expected an even larger gap, but I believe that some respondents might have interpreted the question to be not about election administration, but about the level of competition in elections. Canada has excellent election administration, but not as competitive an election system as in the U.S. Thanks again to the Gallup Organization for letting me post this material.

Breaking News: Supreme Court Agrees to Hear Two Campaign Finance Cases; A New Era in the Court's Jurisprudence?

In its order issued this morning, the Supreme Court agreed to hear two campaign finance cases, one involving spending limits in Vermont legislative races (Sorrell), and the other involving corporate expenditures on "genuine issue ads" during the election season (WRTL). You can find my descriptions of the cases and links to appellate documents and commentary here.

My predictions were half right. I thought the Court would take Sorrell (and I expect to see a reversal). I did not expect to see the Court take the WRTL case. One question is which Justices voted to hear that case, something that is not noted on the order. Justice O'Connor's vote, for example, would be very interesting to know.

These are very interesting developments. In recent years, the Court has divided 5-4 in some major campaign finance decisions. With the replacement of Chief Justice Rehnquist and (presumably) Justice O'Connor, we could well be looking at a new majority on the Court that will start voting to strike down campaign finance laws as inconsistent with the First Amendment. (Indeed, this might be an area where we will see quickly to a Chief Justice Roberts how much respect for recent constitutional precedent matters.) Since the 1976 Buckley case, the Court's cases have swung back and forth like a pendulum, in recent years in favor of upholding campaign finance regulations. We could well be entering the period where the pendulum swings back.

Supreme Court Election Law Preview

The Supreme Court currently has no oral arguments scheduled in election law cases, but that could soon change. At least four significant cases are working their way toward consideration by the Court. Here is a summary and some predictions:

Vermont Republican State Committee v. Sorrell (formerly Landell v. Sorrell) (docket; Second Circuit opinion; cert petition; Response of Respondents/Intervenors). This case considers the constitutionality of Vermont's spending limits for legislative races. It is on the conference for today, but if it is a close vote it will probably be put over so that Chief Justice Roberts can vote on the petition. Here is what I wrote in an earlier post, questioning the strategy of the winners in the 2d Circuit to support the petition for cert (see the original post for the hyperlinks):

You can find six amicus briefs supporting the winning side of the Second Circuit Sorrell case here. Usually, of course, the side that wins in the Court of Appeals opposes a grant of cert. But for years it has been the mission of some of the amici, such as NVRI [CORRECTION: NVRI is an attorney for Respondents-Intervenors, not amici], to try to get the Supreme Court to reconsider that aspect of Buckley v. Valeo striking down spending limits as violating the First Amendment rights of speech and association. Here's a chance, the argument must be, to push the issue, by noting the circuit split, and lining up some heavy hitters (current and former Senators, state Secretaries of State, state judges, and attorneys general) on the winning side to support review to revisit this issue in a high profile case.
On reflection, I think this strategy could well backfire. I had predicted a cert denial in the earlier 10th circuit spending limits case, Homans, because I doubted that the Supreme Court would grant review to upset the settled law that spending limits violate the First Amendment under Buckley. And the Court denied cert.
Now I've been predicting a cert. grant, except noting the odd procedural posture: the Second Circuit has remanded for additional findings, and there's a chance that this issue goes away after the case comes back to the Second Circuit after remand. For this reason, Tom Goldstein concluded that it is "very, very unlikely" that cert. is granted.
After Tom posted his comment, I started thinking about why I am more confident (though far from certain) about a cert grant. And the reason is this: it is hard for me to imagine that Justices Kennedy, Scalia, Thomas and the Chief (four votes for cert, assuming no retirements) would want to allow a Second Circuit opinion holding that spending limits may be constitutional to remain on the books for the year to two years likely before the case returns to the Second Circuit. So the impetus for cert. granting is going to be coming from those who would reverse the holding of the Second Circuit. We can never be sure where O'Connor's vote would be, but she has been a supporter of the entire Buckley framework (maybe the last real supporter on the Court), and if I were Justice Breyer or Ginsburg (or Stevens or Souter), I wouldn't be betting that she'd vote to allow spending limits at this point. So those who might be more sympathetic to the arguments of the Vermont plaintiffs should want to vote to deny cert., so things can percolate in the lower courts and there can be some experimentation, at least in the Second Circuit, with spending limits.
So in the end this strikes me as a big gamble. Plaintiffs should be careful what they wish for: a decision to grant cert now might mean a losing decision down the line, whereas waiting this out for another half decade or so, depending upon the composition of the Court, could have been a wiser strategy.

I wrote this, of course, before the death of Chief Justice Rehnquist and the nomination of Judge Roberts. I expect that Justices Kennedy, Scalia and Thomas might want to put off the decision here, ideally until President Bush nominates someone to fill Justice O'Connor's seat. I think it is likely that whomever the President nominates will be someone opposed to the constitutionality of spending limits challenged under the First Amendment. Once these Justices are convinced that the nominee fits that bill, I think it is likely that cert. will be granted so as to reverse the Second Circuit.

Wisconsin Right to Life v. FEC (docket; Jurisdictional statement; three-judge-court opinion (pages 41-52 of pdf)). This case, another campaign finance case, is an appeal that is on today's conference list. WRTL involves an as-applied challenge to the electioneering communications provisions of BCRA. The gist of the case is that BCRA's ban on broadcast ads paid for with corporate funds cannot apply to a corporation that is running a genuine issue ad not intended to influence the outcome of an election. On page 55 of my recent University of Pennsylvania Law Review article on McConnell v. FEC, I express doubts that an as-applied challenge like WRTL's challenge will succeed. You can find other commentary by Bob Bauer and Marty Lederman and Lyle Denniston of SCOTUSBlog linked here. I predict a summary affirmance of the lower court, and I don't think the vote of Chief Justice Roberts will be determinative. Even though Justices Scalia, Kennedy, and Thomas would likely disagree with the three-judge court ruling, it is hard for me to see two other Justices willing to wade into these McCain-Feingold waters again so soon. I think a much more likely case for a hearing is Sorrell, where there will almost certainly see a majority for reversal if cert is granted.

Johnson v. Bush (docket; Petition for cert.; Eleventh Circuit en banc opinion) This case challenges Florida's felon disenfranchisement rules as violating the United States Constitution and section 2 of the Voting Rights Act. The response to the cert. petition is due mid-October, and this should present the first (or one of the first) opportunities for Chief Justice Roberts to vote on a Voting Rights Act case. Here is what I wrote in an earlier post on this topic:

Based on everything I have seen about Judge Roberts' views of section 2, I find it very difficult to believe he would interpret section 2 to cover felon disenfranchisement absent evidence of discriminatory purpose (though that issue is indeed presented in the Florida case). We know he opposed the broad effects test from section 2, and, as I noted here, he fought to have section 2 interpreted as narrowly as possible once it was passed. As I noted:

In this memorandum to Ken Starr (see page 2 of the pdf), Roberts recommended that the DOJ intervene in a voting rights case in Chicago, writing: "it is critical that the Department participate in the developing process of giving meaning to the vague terms of the new section 2, and help courts avoid the outcomes we argued against and which the proponents of an amended section 2 assured us were never intended."

The liberals on the Court could vote against cert. in this case, out of fear of creating a national precedent that would narrow the reach of section 2. A cert. denial at least keeps the Ninth Circuit's case alive for now.

For more on the existing precedents and background to the decision (including the Ninth Circuit case), see Lyle Denniston's excellent SCOTUSblog post. Former Roberts' co-worker at the Reagan Justice Department, Chuck Cooper, is representing Florida in this case.

Henderson v. Perry (Texas redistricting cases) (Docket; opinion of the three judge court; Jurisdictional Statement (Henderson) [UPDATE: Another jurisdictional statement] ) This is an direct appeal from a three-judge court, meaning the Supreme Court will have to do something with this case---summarily affirm (i.e., affirm without opinion), summarily reverse (exceedingly unlikely) or note probable jurisdiction and set the case for oral argument. Texas waived its right to respond to the petition, likely expecting a quick summary affirmance. I think that this is likely too, unless the Justice who is appointed to replace Justice O'Connor would side with the four dissenters in the Vieth partisan gerrymandering case from 2004 to hold such claims are justiciable. This is not out of the question, because the issue is not strictly a left-right issue (even though the four Vieth dissenters are the most liberal members of the Court). As I explain here, if Tenth Circuit Judge Michael McConnell were nominated to fill Justice O'Connor's seat, there might indeed be five votes to give partisan gerrymandering claims some teeth (even not knowing how Chief Justice Roberts would vote).

"Phantom Constituents in the Census"

The NY Times offers this editorial, which begins:

longstanding quirk in census rules counts incarcerated people as "residents" of the prisons where most are held for only a short time, instead of counting them in the towns and cities where they actually live. This practice was scarcely noticeable 30 years ago, when the prison population was insignificant. But with 1.4 million people in prison today, this padding of electoral districts' population figures shifts political power from the densely populated urban areas where most inmates live to the less populated rural districts where prisons are often built.

UPDATE: See also this post on the ACSBlog.

"Reforming the Net campaign reformers"

Declan McCullagh offers this commentary on the question of the regulation of blogging by campaign finance reform law.

"Several States May Revisit Redistricting"

The LA Times offers this report.

"American Indian voters face hostility in South Dakota"

Indian Country Today offers this report.

More Carter-Baker

Spencer Overton is responding to the Carter-Baker NYT oped on his new group blog, Blackprof.com. His first post is here. Ned Foley has an oped on the commission here (I don't have a paid subscription so I have not been able to read this yet; UPDATE: You can find the Foley oped without a subscription here). The SF Chronicle offers this editorial. The Toledo Blade offers this editorial. Cragg Hines has written this oped.

"Politicos want to shield Net from election laws"

CNET News offers this report.

Richie-Hill on Carter-Baker

See here.

More of Judge Roberts' Views on Bush v. Gore and Voting Rights

Judge Roberts has provided written answers to Senate Judiciary Committee questions, which Howard Bashman has generously posted to his blog. Most interesting from the perspective of election law is Judge Roberts' answers to two questions related to Bush v. Gore (on pages 16 and 23 of this document). Most significantly, Judge Roberts views the case as having some precedential value:

While it is true that the precise facts presented in Bush v. Gore are not likely to come before the Court again, it is not at all improbable that other election disputes will. While the Court in Bush v. Gore stated that its "consideration is limited to the present circumstances," I believe that statement was not meant to deprive the decision of all precedential weight but, rather, to make clear that the precise facts of the case were unique. And while it is undoubtedly true that "the problem of equal protection in election processes generally presents many complexities," the equal protection principles at issue in Bush v. Gore may be implicated in future cases.

See also page 22 of this document, noting Judge Roberts' view that Baker v. Carr was correctly decided; page 38 of this document, in which Judge Roberts responds to written questions from Sen. Kennedy on the right to vote; and page 8 of this document with a brief answer related to the Voting Rights Act. There are also statements throughout about Rice v. Cayetano, a case Judge Roberts' lost as a litigant defending Hawaii's voting rules that allowed only Native Hawaiians to vote in some circumstances.

Carter-Baker on Carter-Baker

Jimmy Carter and James Baker respond to critics of their report in this NY Times oped. Most significant I believe is the fact that James Baker signed on to this statement about Georgia's i.d. law: " We consider Georgia's law discriminatory." Carter and Baker also take an important step here that was not emphasized in the report: voter i.d. rules should only be implemented with the government proactively registering voters.

Yes, we are concerned about the approximately 12 percent of citizens who lack a driver's license. So we proposed that states finally assume the responsibility to seek out citizens to both register voters and provide them with free ID's that meet federal standards. States should open new offices, use social service agencies and deploy mobile offices to register voters. By connecting ID's to registration, voting participation will be expanded.

But the other serious problem with Carter-Baker remains: people who don't have or who have lost ids get disenfranchised. As the oped makes clear, by 2010, anyone who could not produce the physical id within 48 hours of voting would be disenfranchised. Far better, as I've argued, to give the alternative of using biometric information like a fingerprint.

See also this Mobile Register editorial and Doug Chapin's director's report from Electionline, which should be available later today at this link [Update: It is here].

"Libertarians sue over ballot access laws"

A.P. offers this report from North Carolina.

Holding New Orleans Elections in Baton Rouge?

See here. Would the Justice Department preclear? How will the votes of displaced people be ensured?

Clarification on McCain Internet Comment

Here. Bob Bauer reacts to the original comment.

"Campaign Reform Edges Ahead; Details Unresolved"

See this report in the Hartford Courant. See this related oped by Joan Claybrook and Chellie Pingree. Thanks to Dewey Dow for the links.

Brennan Center Responds to Gronke

One of Paul Gronke's Carter-Baker related posts questioned the Brennan Center's arguments on absentee ballots. Justin Levitt of the Brennan Center has written a response, and you can find both the original post and the response here. It is the second comment, not the first (which is spam: I note that Paul has the same problem with comments that I did and that recently plagued Scotusblog: spam being placed into comments and trackbacks. I hope to upgrade my blogging software soon in order to solve this problem.)

Leonard on Carter-Baker

Lloyd Leonard of the League of Women Voters writes:

I enjoyed reading your Christian Science Monitor piece.

Representing an organization that opposes an ID requirement for voting, as advocated by the Carter – Baker commission, I feel the need to point out that the commission did not cost out its companion proposal for a requirement that states take proactive responsibility to register voters. You rightly point out that any serious ID proposal would need to include such a requirement.

The Carter – Baker commission did give cost estimates for making state voter databases interoperable and upgrading voting machines. The commission represented this total cost as the “Estimated Costs of Recommended Improvements.” Evidently the commission was serious about interoperability and machine upgrades. If they were serious about proactive government voter registration, one would have expected that they would propose the means for achieving it. The REAL ID Act, of course, provides the means for achieving the Carter-Baker proposal to require ID before eligible citizens are allowed to vote.

Proactive government voter registration may well be a good thing. Achieving it, however, will be costly and will require a much stronger federal presence in elections.

Thanks for writing!

More Wang on Carter-Baker

See this opinion piece.

Kondracke on Carter-Baker

Morton Kondracke writes this column in today's Roll Call (paid subscription required), entitled "Congress Should Get Busy Promptly on Election Reform." He mostly endorses the Carter-Baker recommendations for reform. It begins: "America is forever vowing “Never Again” — after an overseas genocide, a domestic disaster or a flawed election. Then, time passes, inertia sets in and only half-measures get taken. Down the line, the vows get repeated all over again. We’ll see whether the hurricanes of 2005 produce better disaster preparedness than the Sept. 11, 2001, terrorist attacks did, but one thing is certain: Another 2000 election debacle surely could happen again, because the reforms adopted afterward were inadequate."

My own oped on Carter-Baker in the Christian Science Monitor similarly observes that when it comes to hurricanes, earthquakes, or election meltdown, "advanced planning is the key to avoiding disaster."

Where does John McCain Stand on Regulation of Politics on the Internet?

See this entry at PowerLine. Here is an excerpt:

I asked Senator McCain about the impact of the McCain-Feingold campaign finance reform act on bloggers. He replied that he wanted no government regulation of the internet. I followed-up, politely I hope, by noting that a court decision in litigation undertaken in his name was serving as the basis for proposals to regulate the bloggers. McCain responded that he was not aware that the litigation had raised the prospect of internet regulation, and that he would look into the matter. He then reaffirmed that there should be absolutely no regulation of the internet in the name of McCain-Feingold or campaign finance reform.

Very interesting.

"Two Towns, Two Votes?"

The Hartford Courant offers this interesting editorial.

"AG to Probe Claim of Ballot Fraud"

NJ.com offers this report.

Fertik on Univeral Voter Registration and Carter-Baker

See posts here and here.

"Carter-Baker election reforms imperiled by its partisan voter ID mandate"

The Christian Science Monitor will publish my oped on this topic in Thursday's newspaper. It begins:

The United States is in desperate need of serious election reform. We had an election meltdown in Florida in 2000, and a near-meltdown in Ohio in 2004 that was narrowly averted. Fortunately for the country, there were too many votes separating candidates Bush and Kerry in Ohio to make election litigation over the state's many problems worthwhile. Nonetheless, voter confidence in our election system is declining. And in the increasingly polarized US electorate, the possibility of another razor-thin presidential election ending up in court in 2008 is far from negligible. Indeed, the number of election cases in courts have more than doubled in the period since 2000 compared with the period right before 2000.

From this perspective, the National Commission on Federal Election Reform headed by former President Jimmy Carter and former Secretary of State James Baker looked perfect: a high profile, bipartisan effort to identify ways to fix America's decentralized, increasingly politicized, and underfunded election system. Unfortunately, by taking sides in a fight over voter identification requirements, the Carter-Baker Commission squandered its political capital, perhaps even setting back the cause for reform. That is unfortunate for the country.

It concludes:

If the Carter-Baker commission report is dismissed as a failure, and election reform issues are swept under the rug until 2008, it will be too late to fix problems in time to avert a potential election meltdown. Like dealing with hurricanes or earthquakes, advanced planning is the key to avoiding disaster.

Kelso on California Pre-Election Initiative Review

Clark Kelso offers his thoughts here in the California Bar Journal.

"For Redistricting Control, the Future Is Now"

CQ Weekly offers this report (paid subscription required).

"McCain Forces Frist Retreat"

The Hill offers this report, which begins:

Angry over what he considers a breach of Senate courtesy by GOP leaders, Sen. John McCain (R-Ariz.) has teamed with Democrats and centrist Republicans to force the leaders to back down on an effort to undermine fundraising limits he helped make law in 2002.

With assurance from Minority Leader Harry Reid (D-Nev.) that he would have the Democrats’ support, McCain confronted GOP leaders in private yesterday at the Senate Republican Caucus luncheon.

At issue was a rider attached to the treasury-transportation spending bill that would have allowed lawmakers to transfer unlimited sums from their leadership political action committees to party coffers.

"Leadership PAC Rider Could Drastically Change Rules"

Eliza Newlin Carney offers this "Rules of the Game" column at National Journal.

"Promises to Keep"

Roll Call offers this editorial (paid subscription required), which begins: "It no longer inspires much news coverage — or, apparently, voter outrage — but Members of Congress continue to break self-imposed term-limit pledges with impunity. Just because it continues to happen, however, doesn’t make it right."

Bauer on the Club for Growth Complaint

Bob Bauer posts here on the Club for Growth complaint at the FEC, noting that ethical and practical concerns (his client filed the complaint) limit what he can say.

"Paper Trails for E-Votes Back in Play"

The Atlanta Journal-Constitution offers this report. Thanks to Ed Packard for the link.

More Carter-Baker

The Christian Science Monitor offers this report on the "backlash" to Carter-Baker. The LA Times gives a somewhat positive endorsement to the proposals. See also more blogospheric reaction: Andrew Gumbel, Dan Tokaji (and his roundup); the Lonely Centrist; Bob Bauer; Brad Blog); Spencer Overton (and here).

I'll have more to say on Carter-Baker soon.

Does Jim Gardner Get a Royalty Check?

Get your "Shut Up and Vote" mechandise here. Makes a great holiday gift for that election law scholar in your life.

House Committee Hearing on Internet Campaign Finance Regulation Tomorrow

You can find the details here. FEC Commissioner Ellen Weintraub's testimony is here. Mike Krempasky's testimony is here. I'll add links to other testimony as I receive them. Update: Here is Commissioner Thomas's statement. Here is Commissioner Toner's statement. Bob Bauer offers this commentary.

Gronke on Carter-Baker

Paul Gronke has three interesting posts on Carter-Baker, including one on the Brennan Center question raised in relationto race and the use of absentee ballots. See here, here, and here.

Fulani Loses (Again)

I have uploaded here a federal district court decision rejecting Lenora Fulani's case against the DNC for conspiring to keep Ralph Nader off the presidential ballot in NY. The opinion begins: "This is yet another in a long line of cases in which Plaintiff Lenora Fulani has misused the courts in an attempt to pursue a political agenda which she is not able to accomplish at the ballot box. For the reasons set out below, this misguided effort also fails." This senteced is followed by a footnote noting at least 35 "published cases of this ilk."

"Suit slams voter ID law"

The Atlanta Journal-Constitution offers this report, with the subhead: "Plaintiffs assail Ga. requirement as illegal 'poll tax.'"

"Voting Improvement"

The Boston Globe offers this editorial on settlement of a Voting Rights Act controversy in Boston.

More Carter-Baker Coverage

See CQ Today; this Roll Call report (paid subscription required); this Hartford Courant report; this Oakland Tribune report; this Washington Post editorial; and this New York Times editorial. Those wanting to hear more about Spencer Overton's experiences on the commission should look here and here. And my earlier thoughts and additional coverage are linked here.

"F.E.C. Sues Republican Group Over Political Contributions"

The NY Times offers this report, which begins: " The Federal Election Commission filed suit Monday against the Club for Growth, a well-funded Republican group, in an effort to force the organization to comply with limits on political contributions. The suit is the first major enforcement case to involve a "527 committee," the independent political organizations that both Republicans and Democrats used to raise and spend hundreds of millions of dollars in the 2004 races. Commission officials describe it as a test case that could have a major impact on how future elections are financed."
The FEC's press release is here and the complaint is here) (congratulations to the FEC which is making its website both easier to navigate and full of more timely information). Allison Hayward weighs in here and I expect we will hear soon from Bob Bauer and The Lonely Centrist.

My Thoughts on the Carter-Baker Election Reform Report

Today the Commission on Federal Election Reform headed by former President Jimmy Carter and former Secretary of State James Baker issued its final report and recommendations on election reform. As a matter of disclosure, I served as an academic advisor to the commission and testified at a commission hearing; as noted (page 103) serving as an advisor "does not imply [agreement] with all of the report's recommendations." In fact, I think that some of this report is right on target, some of this report has distracting recommendations, and some of the recommendations are wrongheaded.

Nonpartisan election administration: the right call: First, what is right, and what is most important, is the section on election administration. The report strongly recommends nonpartisan election administration, and agrees with my idea for state chief election officers to be appointed by governors and confirmed by a supermajority vote of the state legislatures. This method will move election administration toward professsionalization and depoliticization. The commission also agrees that states should endorse the IDEA code of conduct for nonpartisan election administration. These are crucial steps in restoring public faith in the elections process. Nelson Lund appears to be the only commission member to dissent from these recommendations.

Distractions: Primary timing, etc. It seems to me that the Commission is squandering much of its political capital by focusing on less important issues than questions of the free and fair running of elections. The nonpartisan election adminstration chapter is chapter 6; it should have been first. Much of the press coverage will also go to tangential issues such as Chapter 9's call to change the timing of presidential primaries. To see what kind of distraction this is, compare the LA Times story (focusing on election administration) with the NY Times story (focusing only on primaries, and not even discussing election administration issues).

The Mistake: Voter ID Rules. The Commission recommends (section 2.5) the adoption of state voter identification rules, which is tied in maily with new federal REAL ID requirements for drivers licenses. (The Washington Post story focuses on this aspect of the report.) Three commissioners dissented from these recommendations. For some inexplicable reason, dissents were limited to 250 words. Spencer Overton's 597 word dissent is now posted on a separate website and it appears that he will be posting additional material there.

The problem with the commission's recommendations is not, as Bob Bauer suggests, that we don't have enough information about voter i.d. problems. The problem is that this proposal is not correctly targeted at the problem. Here is what we know: some voter fraud (likely not much) occurs on the local level, there is some double voting by voters who vote in two separate states, and the bulk of fraudulent voting appears to occur through absentee ballots. Requiring the presentation of voter i.d. at the polling place addresses only the first (and least significant) of these problems. In addition, voter i.d.s tied to drivers licenses (as the commission suggests) will place an onerous burden on the poor and those (especially elderly) who lack drivers licenses.

The need for voter i.d. is real, so as to prevent real fraud (especially through absentee voting and double voting across states) and to keep public confidence in the process. But it should be coupled with a government universal voter registration plan. The government should affirmatively go out and register everyone who wishes to be registered, and collect a thumb print, which can then go in voter rolls and on every absentee ballot (in such a way to assure secrecy of voting). The voter ids should be free to everyone, and anyone who shows up without an id should be able to vote by giving a thumb print.

By tackling only half the problem, the commission in this regard makes things worse than the status quo. This recommendation will only increase the divide over the fairness of election administration in the U.S.

UPDATE: Here are some additional reactions to the Carter-Baker report: League of Women Voters; Dan Tokaji; Tova Wang (more to come). Spencer Overton writes here about what he sees as flaws in the process of the Carter-Baker commission.UPDATE 2: The Brennan Center, along with Spencer Overton, has now issued this detailed report. See also this new website of election reform organizations opposed to aspects of the Carter-Baker proposals.

New Book on California Recall

Prentice Hall has just published Clicker Politics: Essays on the California Recall, edited by Shaun Bowler and Bruce Cain. I have an essay in the volume entitled "The California Recall Punch Card Litigation: Why Bush v. Gore Does Not 'Suck'" (earlier draft here).

In the Election Law Mailbag

Michael Waterstone has published Lane, Fundamental Rights and Voting, 56 Alabama Law Review 793 (2005). I read this article in draft and it is well worth the read for those interested in the intersection of voting law and disability rights.

"Coordination’ Difficult to Prove"

Roll Call offers this report (paid subscription required). It begins:

The Federal Election Commission recently dismissed a complaint alleging that EMILY’s List had unlawfully coordinated its broadcast advertising buys in with the 2004 campaign of unsuccessful Florida Senate hopeful Betty Castor (D).

The basis on which the decision was made, however, may represent the FEC’s formalization of a method used by the parties and outside groups to comply with — or in the view of it critics, circumvent — contribution limits

"Redistricting Does Need a Change, Just Not This One"

George Skelton offers this LA Times column.

"Gov. Backs Prop. 75"

The Los Angeles Times offers this report, with the subhead: "Measure championed by the GOP would restrict unions' ability to put dues to political use."

"County election boards question voter-fraud study"

See this report from New Jersey, on GOP allegations of voter irregularities in that state. See also this very insightful post from Michael McDonald on the election law listserv.

Amar and Leib on California Gay Marriage Initiative Conflict

Following up on this post Vik Amar and Ethan Leib offer this Findlaw column. They suggest that if the measure were signed by the governor, its effect would be to create a referendum to be put before the voters.

More Gerken on the VRA

Heather Gerken has written Race (Optional): A Voting Rights Act Compromise for the New Republic.

"Political foes can be friendly witnesses"

See this Spivak & Bice column, from Milwaukee, which begins: "Politics may make strange bedfellows, but an indictment truly brings together some unlikely allies. In a recent court filing, former Senate Majority Leader Chuck Chvala, now facing 19 felony counts in a political corruption case expected to go to trial late next month, has lined up a leading Republican lawyer, James Bopp, as one of his expert witnesses."

"Speech Regulation Alert"

The NY Sun offers this editorial.

"Governor to put his money down"

The Sacramento Bee offers this report, which begins: "Gov. Arnold Schwarzenegger, who's received a rash of criticism for trying to raise the $50 million he says he needs for his special election campaign, will soon contribute several million dollars of his own money to the cause."

More Diebold Conspiracy Theories Making the Rounds on the Internet

See this post on the Brad Blog.

UPDATE: Brad of the Brad blog writes:

While I'm delighted, of course, that you posted a link to my story
concerning the Homeland Security Warning of the vulnerability in the main
tabulation software on Diebold Electronic Voting machines, I'm somewhat
dismayed that you'd marginalize this important report as "more conspiracy
theories".

I don't believe a "conspiracy theory" has been charged in the article, but
rather news that was important enough to concern a branch of Homeland
Security enough that they issued a report PRIOR to last November's election.

I appreciate the sober tone you seem to take on most of your blog items, but
am somewhat puzzled as to why you would seem to belittle *real* reporting in
this atmosphere when most of the concerns that *you* seem to have don't even
see the light of day in most of the mainstream media. That's their failing,
of course, not yours. But belittling the hard work done by those of us who
*do* give a damn about *real* voting rights in this country and accurate,
verifiable, transparent elections is rather puzzling.

It's only democracy at stake after all.

I agree that I should have chosen a more neutral title for my blog post. I will let readers determine for themselves the merits of the argument in the linked post.

"Among Voters in New Jersey, G.O.P. Sees Dead People"

The New York Times offers this report, which begins: " The joke has long been that dead people vote in Hudson County, New Jersey's legendary enclave of machine politics. But now the joke may be on New Jersey, according to a new analysis of voter records by the state's Republican Party.

Comparing information from county voter registration lists, Social Security death records and other public information, Republican officials announced on Thursday that 4,755 people who were listed as deceased appear to have voted in the 2004 general election. Another 4,397 people who were registered to vote in more than one county appeared to have voted twice, while 6,572 who were registered in New Jersey and in one of five other states selected for analysis voted in each state."

Thanks to Brian Nelson for the pointer.

Election Reform Conference

On October 7-8, the Center for Policy Alternatives, Demos and Common Cause will host an Election Reform Conference in Columbus, Ohio (the true epicenter for election reform, apparently). According to this web page,

This conference is designed to provide policy content, leadership development and networking opportunities for state legislators to advance an election reform agenda in their states. This conference, targeted to state legislators in the Midwest, has three strategic objectives:

Raise the awareness of state policymakers of the electoral problems that need repair within their states while providing proposals and best practices that provide solutions to these challenges.
Develop leadership capacity among policymakers and apply that capacity to effect change within their states.
Connect these legislators to electoral policy experts, reform advocates and citizen organizers and facilitate the creation of action plans to move a reform agenda forward in their states.
This combination of strategic objectives - leadership, education and networks - has been successfully used to reform public policy and enrich democracy in America.

Solum Responds to My Nuclear Showdown Piece

Here is a characteristically thoughtful post by Larry Solum. Anyone interested in this topic should read his draft with David Law, "Pivotal Politics, Appointments Gridlock, and the Nuclear Option."

A Coming Nuclear Showdown in the Senate?

Last week I suggested how President Bush could try to please his Republican base but avoid a nuclear showdown in the Senate with his next Supreme Court nomination:

I now expect the President to nominate neither a Brown nor a Gonzales for the O’Connor seat, but rather to choose a woman or minority much like Judge Roberts. The model is to pick someone with impeccable legal credentials (Brown and Gonzales both qualify) whom the president trusts as strongly conservative (this eliminates Gonzales) but who lacks a public record of strongly conservative statements or judicial opinions (this eliminates Brown). The Roberts experience shows that such a nominee is not easily defeated: the impeccable credentials insure that attacks on the nominee as unqualified fail, and the lack of strong specific examples of conservative ideology prevent opponents of the nominee from having enough ammunition to get the general public concerned about the ideological extremism of the nominee. The choice of a Roberts II has the additional advantage of not alienating the President’s base.

This analysis assumed that conservatives would be willing to go along with a Roberts II, trusting that the President will choose someone who will be reliable on their issues, particularly abortion. Some conservatives, however, are signalling that this strategy won't work. Today's Roll Call, for example, features Brownback Outlines Terms for Next Pick (paid subscription required), which begins: "Sen. Sam Brownback (R-Kan.) said Wednesday that he would like the next Supreme Court nominee to have a detailed track record opposing the Roe v. Wade decision, as opposed to the relatively limited record on abortion issues held by Judge John Roberts." The article also includes the following:

Manuel Miranda, a former Senate GOP leadership aide, sent conservative activists an e-mail Wednesday warning that the second pick should come from a crop of candidates who have either ruled on the issue on state courts or written on the matter. He noted that William Rehnquist won confirmation as chief justice in 1986 even though he was one of two justices to rule against Roe in 1973.

“When the President promised he would appoint judges like Scalia and Thomas, it was not their views on the Clean Sewers Act that he was trying to signal to us — it was code for Roe. He knew it, we knew it,” wrote Miranda, who resigned his Senate post 20 months ago during an internal chamber investigation about whether he had improperly accessed Judiciary Committee memos.

Miranda now runs Third Branch, a group devoted to confirming conservative jurists to the federal bench.

If conservatives won't go along with a Roberts II, all bets are off, and we will come much closer to nuclear showdown in the Senate. And if the President decides that the best way to improve his low poll numbers is to appeal to his base, then that would be a reason for the President to trigger, not avoid, nuclear showdown.

Gerken on Section 5

Heather Gerken has posted A Third Way for the Voting Rights Act: Section 5 and the Opt-In Approach on SSRN. Here is the abstract:

One of the most powerful and intrusive civil-rights provisions ever passed - Section 5 of the Voting Rights Act - is scheduled to sunset in 2007, with congressional hearings on its fate beginning soon. Section 5 requires select localities - mostly states in the Deep South - to ask the federal government's permission before making any change, no matter how small, in the way they run elections. Despite its successes, Section 5 remains extremely controversial. Even experts on the Act are deeply divided as to what Congress should do.

Our choice is not, as everyone seems to think, between maintaining the Act's decades-old regulatory structure or allowing Section 5 to expire. There is a more dynamic approach, a middle ground that avoids the problems identified by the Act's critics while maintaining a robust safety net for minority voters. This essay sets out to describe what such a third-way approach would look like. It proposes an "opt in" approach that would privilege local control and community involvement in voting-rights enforcement. Such an approach would provide the right types of incentives for those involved in policing racial politics and deploy civil-rights enforcement resources more effectively than the current system. More intriguingly, an opt-in approach would create a new set of institutional incentives for political elites to pay attention to the needs and concerns of those most affected by their decisions. An opt-in approach thus offers a concrete strategy for tying the fate of political elites to average citizens and integrating debates about electoral structures into everyday politics. By reducing top-down regulation of election law, it may generate bottoms-up support for voting-rights enforcement.

Galston on 527s

Miriam Galston has a new draft paper on SSRN, 527 Groups and Campaign Finance: The Language, Logic, and Landscape of Campaign Finance Regulation. Here is the abstract:

In 2004 the country witnessed the first presidential election since the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA). A major purpose of BCRA was to end two of the worst abuses of the federal campaign finance law-sham issue ads and soft money raised by political party committees. The BCRA amendments, like existing federal campaign finance law, were designed first and foremost to prevent corruption or the appearance of corruption resulting from large contributors' requesting favors from or gaining influence with the public officials whose campaigns their contributions benefited, regardless of whether the contributor or the lawmaker initiated the mutually beneficial process. As many foresaw at the time of BCRA's passage, individuals and groups with considerable assets would seek and probably find new campaign finance vehicles for achieving most of the benefits of the system prior to BCRA. Nonetheless, the swiftness with which 527 groups have threatened to replace political parties as the soft-money middlemen in federal campaigns surprised and angered many - from members of Congress to ordinary citizens. Since the 2004 election saw one of the most polarized campaigns on record and since 527 groups, both Democratic and Republican, were especially active in funding attack ads and other highly visible forms of campaign activity, they emerged as the arch villains of the process. Bills have been introduced in Congress to compel almost all 527 groups engaged in federal campaigns to register as political committees subject to federal campaign finance law (FECA). In addition, lawsuits have been filed to force the Federal Election Commission (FEC) to impose sanctions on 527 groups that failed to register as political committees in the last election. Lawsuits were also filed challenging some of the FEC's regulations on the grounds that they emasculated the provisions of BCRA, thereby contributing to the failure of reform efforts the agency is charge with implementing. As a result, some of the regulations were invalidated, some rewritten, and some are being appealed. In short, campaign finance reform is still in flux. The purpose of this Article is to analyze the legal issues that must be resolved before the validity of efforts to rein in 527 groups can be established. Most of these issues are constitutional because, by its nature, campaign finance regulation intrudes upon political speech, part of the core of First Amendment speech entitled to the most vigorous protection by the courts. My contribution to an area of the law where so many others have preceded me is to integrate the constitutional election law analysis with a technical analysis of what 527 groups really are and how they actually operate under the Internal Revenue Code. I also develop a new paradigm for understanding the conceptual foundations of specific constitutional doctrines that can and, in my view, do reveal a relatively coherent election law jurisprudence across the Supreme Court's campaign finance decisions, even taking into account the recent decision in McConnell v. FEC, which most commentators agree broke new ground. I divide the constitutional issues at stake into different categories and conclude that in some areas the precedents are difficult to square with the 527 reform proposals, whereas in other areas mainstream Court precedents tend to support the validity of the reform proposals. In conclusion, I raise some policy questions that, if faced squarely, should give lawmakers pause before painting all 527 organizations with the same legislative brush.

Interesting Report on Voter I.D. Law on the Ground in Georgia

See here.

"Blacks Are on Ballot in Record Numbers"

The Washington Post offers this report in its Maryland section.

Judge Roberts' Non-Answer on McConnell (and Bush v. Gore)

I was in my car (again, such is life in Los Angeles), and I just heard an exchange between Senator Brownback and Judge Roberts. (I don't have a transcript to link to yet.) The senator's question was the familiar one raised by opponents of campaign finance regulation: how can the Supreme Court strike down on First Amendment grounds laws such as those regulating virtual child pornography on the internet, but uphold restrictions on political speech such as that part of McCain-Feingold limiting corporate and union speech just before elections? Judge Roberts gave no indications as to his own views on the propriety of either case, but sought to explain the Court's decision upholding McCain-Feingold law as based upon the very large record of evidence developed by Congress in passing the law and presented before the three-judge court. The exchange left me with no further indication regarding how Judge Roberts would vote on campaign finance regulation questions, other than my intuition (based on his general conservative philosophy and not on the exchange with the Senator) that he is likely to be less willing to go along with regulation than Justice O'Connor, who turned out to be the swing vote on the constitutionality of McCain-Feingold.

For a similar non-answer on Bush v. Gore, see the exchange with Senator Kohl that I have noted here and this earlier post.

Sen. Kennedy Pushes Judge Roberts More on Voting Rights

You can find the transcript of the exchange here. Judge Roberts apparently was not aware of cases upholding the constitutionality of section 2 of the Voting Rights Act, and I don't read his comments as precluding a holding of unconstitutionality as applied to particular instances of application of section 2, such as in the case of felon disenfranchisment.

Judge Roberts also discussed the Voting Rights Act with Senator Hatch here.

Tom Goldstein also report that Judge Roberts would not comment on whether or not he agrees with Bush v. Gore. Tom writes: "Here's the first time I think that Roberts is just avoiding the issue, given that the Court's opinion essentially says that it isn't setting a precedent applicable beyond those facts." But I think it is actually quite likely that in the next few years the Supreme Court will need to resolve the question whether in fact the case has any precedential value, and, if it does, what its equal protection holding actually means.

"The Promise of Voter Equality: Examining the Voting Rights Act at 40"

You can find the agenda for this conference at South Carolina Law School on October 21. I'll be there talking about congressional power to renew section 5 of the Voting Rights Act.

"Campaign law challenge lurks in few lines of bill"

The Kansas City Star offers this report, which begins: "Tucked in the depths of a 438-page congressional appropriations bill lies the first major legislative threat to the campaign finance reform law that passed in 2002."

"Prop. 77 backer forms campaign"

A.P. offers this report, which begins: "A key supporter of Gov. Arnold Schwarzenegger's redistricting measure announced plans Tuesday to form an independent, nonpartisan campaign supporting Proposition 77 - largely over fears the measure will fail if tied directly to Schwarzenegger's other Republican-backed ballot initiatives."

"County Moves to Enforce Fundraising Rules"

The Los Angeles Times offers this report.

"Fall elections in Jefferson, N.O. postponed"

See this report from Louisiana, which begins: "Hurricane Katrina has forced an indefinite postponement of the fall elections in Orleans and Jefferson parishes, the Louisiana secretary of state's office said Tuesday." Thanks to Political Wire for the pointer.

"How to Hire a Fair Election Law Umpire?"

Ned Foley writes this commentary on the OSU Election Law website.

National Academies of Sciences Releases Important Report on Electronic Voting

You can find details about the report, including how to read it online without charge, here at Election Updates (Alvarez and Hall).

Judge Roberts' Unsatisfactory Answers on the Voting Rights Act

You can find more of my thoughts on why Judge Roberts' answers to the Senators on the Voting Rights Act were disappointing here and here (election law listserv).

More on Judge Roberts' Testimony Related to the 1982 Voting Rights Act

Here is the relevant language from a transcript (see here and continuing to the next page) of a discussion between Judge Roberts and Senator Feingold (there are clearly some things missing or garbled in this transcript, but you can get the gist):

ROBERTS: Senator, my personal view of the Voting Rights Act is not somebody was interested in. You have people who serve on your staff, and their job is to help you implement your views as a senator.

FEINGOLD: I'm not questioning what your view was then...

ROBERTS: I'm just saying...

FEINGOLD: ... I'm asking what you think now, having -- this is pretty settled area; I think you'd agreeing -- having seen all this, having been intimately involved in it, knowing it as well as you do, do you believe that the intent test was still the more appropriate standard by which to evaluate vote dilution claims?

ROBERTS: Senator, I haven't studied the Voting Rights Act to determine whether the intent test or the effects test would have different results in different cases under section two. I'm in no position to make a judgment on that.

FEINGOLD: It would be my sense that you would be a person who would, with your enormous abilities and background, to have some sense about that. Obviously, understand that requiring a voter to prove any additional factor makes it harder for the voter to win the case and that to prove the intent of an entire legislative body can be very difficult, especially when a voting system was put in place many years ago, requiring African Americans, Latino voters, many of whom have had limited financial resources, to find evidence of intent was adding an enormous hurdle for them to overcome.

In the Mobile v. Bolden case itself, which was pursued after the Supreme Court's decision in 1980 and before Congress amended the law in 1982, makes it very clear, I think clear to all of us over the years, how difficult that standard was.

African Americans from Mobile, Alabama, had been unable to elect any candidates to the position of city commissioner for every election cycle for something like seven decades. They challenged the method of electing city commissioners that allowed the same majority to choose all the commissioners all the time in at-large elections, and the evidence was very clear that as a practical mater, although African Americans could register and vote, they couldn't elect anyone.

But to get relief under the Supreme Court standard, which you appear to have supported, they had to go to enormous effort and financial expense to prove discriminatory intent, including hiring a historian who could piece together the motivations of city officials who had designed the electoral system almost 100 years earlier.

In this situation, the administration was not bound by a Supreme Court decision in deciding what position to take on the proposed Voting Rights Act amendment. So why at that point did you want to make section two cases so difficult to prove?

ROBERTS: Senator, you keep referring to what I supported and what I wanted to do. I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships.

I was not shaping administration policy. The administration policy was shaped by the attorney general, on whose staff I served. It was the policy of President Reagan. It was to extend the Voting Rights Act without change for the longest period in history at that point. And it was my job to promote the attorney general's view and the president's view on that issue. And that's what I was doing.

FEINGOLD: I recognize that. What I'm trying to figure out is, given the fact that you've followed this issue for such a long time, I would think you would have a view at this point about whether you were right about -- or the department, let's say, since you were working for them -- whether the department was right on seeking to keep the intent test or whether time has shown that the effects test is really the more appropriate test.

ROBERTS: Well, Senator, I haven't followed the issue of the particular litigation. I had involvement in some litigation when I was in the Solicitor General's Office in which we were effective in proving violations under the Voting Rights Act.

Many of those cases arose under issues under Section 5 -- pre- clearance issues -- and not under Section 2. I, as a judge, had a case -- a three-judge district court case -- again arising under the pre-clearance provisions. But I'm certainly not an expert in the area and haven't followed and have no way of evaluating the relative effectiveness of the law as amended or the law as it was prior to 1982.

FEINGOLD: Well, with all respect, and I realize I should move on to another topic, but it just seems how strongly you stated some of these memos -- and I understand you were doing your job -- I would think you'd have a view today whether or not those strong statements still make sense.

The point appears to be that Judge Roberts was given a chance to declare section 2 a success (see the sources cited in Lowenstein and Hasen, Election Law at page 208---noting, inter alia, the post 1982 75% success rate in challenges to at large voting districts), as most people believe it now is, and he declined to do so. At the same time, he sought to distance himself personally from the views in the memos. So we are getting really no explicit statements from Judge Roberts about his personal views of the benefits of section 2.

Judge Roberts' Answers to Sen. Kennedy on the Voting Rights Act

I was just listening to Senator Kennedy's questioning of Judge Roberts about his views on, among other things, the Voting Rights Act. (I was listening in my car, without taking notes, so what follows is from memory.) It is clear that Senator Kennedy has more questions to ask about Judge Roberts' views of the VRA, and I suspect these questions will come up when Sen. Kennedy gets an additional chance to ask questions.

But here is what I would say are my initial impressions about what Judge Roberts had to say.

1. Judge Roberts agreed that for the most part the constitutionality of the 1965 Voting Rights Act was settled law (though he left open the possibility that there could be certain as applied constitutional challenges to certain aspects of that law, and he would not express an opinion on these points).

2. Although he did not discuss the point in any detail, he refused to express an opinion on whether a renewed section 5 of the VRA would be constitutional. He noted that a congressional debate is beginning, and further noted that there are disputes about the constitutionality of the law. It is very clear that he won't directly address the question of congressional power to pass a renewed section 5, but further questions to Judge Roberts on cases like Tennesee v. Lane could shed light on the subject.

3. Senator Kennedy confronted Judge Roberts with the 1982 memos he had written on the Voting Rights Act. Kennedy read what I considered to be the most controversial of the quotations from the letters (all of which I have written about before in my LA Times oped and on this blog). I would say that Judge Roberts offered three defenses:

a. He was expressing the views of the administration he was working for (with the intimation being that these were not necessarily his personal views)

b. The position that the administration was taking was a defensible one, one that was debated 23 years ago. It was a position that saw a more minimal role for Congress beyond dealing with past discrimination (through section 5) and preserving the right to vote itself (i.e., as opposed to increasing the power of political minorities to elect representatives of their choice)

c. In retrospect, section 2 has proven to be a valuable tool for litigants

Together these three statements do not tell us what Judge Roberts thought of section 2 personally as a matter of policy. And I think it was deliberate that Judge Roberts did not express his opinion in this regard. I would hope to see Senator Kennedy or another Senator ask the question (without a 5-minute convoluted introduction to the question): "Did you think in 1982, and do you think now, that section 2 of the VRA as amended in 1982 was good public policy?"

"FEC to Testify Before House Panel"

BNA offers this report (paid subscription required), which begins: "Leaders of the Federal Election Commission considering a rule to regulate politics on the Internet will testify on the issue at a House hearing tentatively scheduled for Sept. 22, a congressional aide said. The hearing by the House Administration Committee, chaired by Rep. Bob Ney (R-Ohio) will hear testimony from FEC Chairman Scott Thomas, a Democrat, and Michael Toner, the FEC's Republican vice chairman, according to Ney spokesman Bryan Walsh. Other public witnesses also are expected to testify."

Brown on Katrina and Louisiana Politics, Including Redistricting

Peter Brown offers this column, which originally appeared in the Orlando Sentinel. Thanks to Jeff Wice for the pointer.

"Redistricting Reform May Be on the March in Three Big States"

Roll Call offers this report (paid subscription required), which begins: "With initiatives to reform redistricting expected to make the 2005 ballot in California and Ohio, and another for 2006 gaining traction in Florida, the ultimate insider issue has suddenly become hot in three of the nation’s most populous states."

"FEC Was Right to Allow Soft Money In Calif. Initiatives"

FEC Commissioner Michael Toner writes this Guest Observer column (paid subscription required) in today's Roll Call. A snippet:

The plain meaning of the statute is that the soft-money ban applies to elections for public office, but does not apply to non-candidate political activity, such as ballot initiatives and referenda. Any other interpretation would render the statutory reference to “office” a nullity. The FEC correctly followed the plain meaning of the law and rejected efforts for the Commission to go beyond its statutory authority.

The legislative history is consistent with the FEC’s interpretation of the statute. In debating the McCain-Feingold law, not a single Member of Congress, including the legislation’s sponsors, indicated that the soft-money ban would apply to initiatives and referenda. Revealingly, several Members of Congress who voted for McCain-Feingold, including House Minority Leader Nancy Pelosi (D-Calif.), informed the FEC last month that this was their understanding of the law.

The FEC’s ruling also advances important policy interests. Had the FEC concluded that McCain-Feingold applied to the California initiatives, a vast fundraising imbalance may have resulted. Schwarzenegger and his allies are permitted under California law to raise unlimited corporate and individual contributions, and published reports indicate that the governor plans to raise $50 million or more on behalf of the initiatives.

"McCain, Feingold Targeting Rider"

Roll Call offers this report (paid subscription required), which begins: "Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) implored their colleagues Monday to support their efforts to remove a campaign-finance rider to the Treasury-Transportation appropriations bill, which is slated to come to the Senate floor as early as this week. The provision would allow lawmakers’ leadership political action committees to give unlimited funds to the national party committees, opening what the two Senators believe would be a significant loophole in the campaign finance law."

"CBC Questions John Roberts"

The Hill offers this report, which begins:

Leaders of the Congressional Black Caucus (CBC) on Saturday took their strongest step yet toward opposing the nomination of Judge John Roberts, urging senators to submit the Supreme Court nominee to tough questioning on issues of racial discrimination.

“We are both astonished and troubled by what the papers of Judge John Roberts Jr. … reveal about his views on civil rights matters in virtually all the areas of concern to African Americans,” wrote Rep. Mel Watt (D-N.C.), the CBC’s chairman, and Del. Eleanor Holmes Norton (D-D.C.), judicial nominations chairwoman for the caucus, to Senate Judiciary Committee members. “We have deep and expansive concerns about the Roberts nomination.”

Watt and Norton highlighted eight areas of questioning they hoped the panel’s members would pursue, ranging from affirmative action to the reauthorization of the Voting Rights Act.

"Ruling Hints at Scrutiny of Lobbyist ‘Bundling’"

Roll Call offers this report (paid subscription required), which begins: "A little-noticed aspect of a recent decision by the Federal Election Commission could have far-reaching implications for how fundraising is conducted in Washington, as the agency eliminated some wiggle room in outside lobbyists’ abilities to 'bundle' contributions from corporate executives and pass them on to lawmakers. Lobbyists can still engage in such activities, however, so long as they act in their personal capacities."

Dan Weintraub Criticizes Arguments By Maldef, the League of Women Voters and the Asian-Pacific American Legal Center Against Proposition 77

See this post, criticizing this position paper.

"Governor vetoes signature-gatherer bill"

See this report, which begins: "Gov. Arnold Schwarzenegger vetoed a bill by Assemblyman Joe Nation yesterday that would have required people who are paid for gathering initiative signatures to wear a badge." Link via California Election Law, which links to other stories on election law measures being vetoed by Gov. Schwarzenegger, as well as this article, in which California's secretary of state predicts that "future elections will be closer."

"Schwarzenegger Seeking Re-election"

Roll Call offers this report (paid subscription required), with the subhead: "Imminent Announcement Seen as Boost to Flagging Reform Package."

"Katrina's Aftermath: Political Landscape May Shift on Displaced Voters"

The Los Angeles Times offers this very important report, with the subhead: "The party makeup of districts in Louisiana may hinge on which evacuees return or are able to cast absentee ballots, experts say."

"Ballot Item Creates GOP Split"

The Sacramento Bee offers this report, which begins: "Boldly treading where few other Republicans want to go, Roseville Rep. John Doolittle has stepped forward as a leading critic of the redistricting measure supported by Gov. Arnold Schwarzenegger."

"Georgia's New Poll Tax"

The New York Times offers this editorial on the Georgia identification controversy.

Did McCain Neglect to Stand By His Ad in a California Election?

Allison Hayward has the details here.

Ohio Appellate Court Rejects Challenge to Election Reform Initiative on Jurisdictional Grounds

See this Toledo Blade report, holding that the Ohio Supreme Court must decide this issue. When I have a link to the opinion, I'll post it.

"Louisiana NAACP President Calls for Emergency Legislation to Extend the Voting Provisions of the 1965 Voting Rights Act"

See this press release, which begins: "JACKSON, Miss., Sept. 9 /U.S. Newswire/ -- Some provisions of the Voting Rights Act of 1965 are set to expire in 2007. Ernest Johnson, Sr., president of the Louisiana NAACP, calls on President Bush and the Congress to pass emergency legislation to extend those provisions for another 25 years in light of the recent disaster caused by Hurricane Katrina."

It is not clear to me precisely what the relationship is between the hurricane and renewal of the preclearance provisions of the VRA.

Hurricane Katrina, The President’s Low Approval Ratings and the Next Supreme Court Nominee: Beyond the Conventional Wisdom

This post follows up on an earlier post in which I described the choice facing President Bush in filling the vacancy created by Justice O’Connor’s imminent retirement. I noted that the President was likely to choose a minority and/or a woman to fill the seat, and that he has to make a fundamental choice between a nominee likely to please his base by moving the Court to the right, thereby risking the trigger of the “nuclear option” in the Senate, and a more centrist nominee that could potentially preserve the status quo ideological balance on the Court. I suggested D.C. Circuit Judge Janet Rogers Brown as someone fitting into the former category and Attorney General Alberto Gonzales as fitting into the latter category. As I’ll explain, I now think the President is likely to go a third way.

My thinking over the last few days had been that the President’s recent low approval ratings (driven down even further by the government’s response to Hurricane Katrina and continued concern about how the war in Iraq is going) would lead the President to go the Gonzales route. The President, who once had a lot of political capital to spend, now has much less, and the Gonzales route is the path of least resistance. Nominating someone who is (or can plausibly be painted to be) well to the right of Justice O’Connor would provoke a pitched battle in the nation that could further deteriorate the public’s views of the President’s leadership, even endangering Republican congressional majorities in the 2006 elections. I certainly do not buy the argument that the President would be likely to choose someone like Judge Brown to please his base as a way to solve his low approval rating problems.

I now expect the President to nominate neither a Brown nor a Gonzales for the O’Connor seat, but rather to choose a woman or minority much like Judge Roberts. The model is to pick someone with impeccable legal credentials (Brown and Gonzales both qualify) whom the president trusts as strongly conservative (this eliminates Gonzales) but who lacks a public record of strongly conservative statements or judicial opinions (this eliminates Brown). The Roberts experience shows that such a nominee is not easily defeated: the impeccable credentials insure that attacks on the nominee as unqualified fail, and the lack of strong specific examples of conservative ideology prevent opponents of the nominee from having enough ammunition to get the general public concerned about the ideological extremism of the nominee. The choice of a Roberts II has the additional advantage of not alienating the President’s base.

As women potential nominees go, the leading candidate in this view would be Judge Edith Clement of the Fifth Circuit (who was widely rumored to be President Bush’s initial choice to fill Justice O’Connor’s seat before he chose Judge Roberts). As far as minorities go, perhaps Judge Garza fits the bill, though he may be too easily painted as too conservative based upon his judicial opinions.

There is one major caveat to this analysis. Jack Balkin has suggested that it is in the interest of the Republican Party for Roe v. Wade to remain good law even if President Bush would never admit it. Let the issue of abortion revert to the states, the argument goes, and Democrats will have a galvanizing issue to gain public support (especially among Republican women) in many states. If the President accepts this argument, he might look for a candidate like Gonzales who would be expected to uphold Roe (not necessarily on its reasoning but out of respect for existing precedent). And the ideal candidate will have expressed these views in a way that is apparent to the president but not to the public (again eliminating Gonzales himself, but not Gonzales II). Ironically, in Balkin’s view the President would be applying a litmus test on abortion, but precisely the opposite one than most people expect.

Light Blogging Until Monday

I'm off to the Ohio State conference on nonpartisan election administration. Back on Monday.

"Truth-in-campaign law struck down"

The Seattle Times offers this report about this opinion issued by a Court of Appeals in Washington state. For those who teach election law using Lowenstein & Hasen, this case is a follow on to the "119 Vote No! Committee" case in the campaigns chapter. In the new case, the court held that the false campaign speech law violated the Constitution because it was not limited to defamatory false campaign speech.

"Petition circulator for ballot issue suspected of forging signatures"

See this news from Ohio. In somewhat related news, the Toledo Blade offers Outsiders largely financing election reform effort in Ohio.

"State agrees to give provisional ballot to voters without ID"

A.P. offers this report from Arizona.

"Disabled man's signature accepted"

The Cleveland Plain Dealer offers this report, indicating that election officials have now made a sensible decision.

"Governor's hands were tied in gay marriage veto"

See this report in the San Francisco Chronicle. I generally agree with Eugene Volokh's analysis of the California Constitution that the legislature may not amend an initiative directly (instead, it must put any ballot measure before the people to accomplish that purpose). One wrinkle is the possibility that Prop. 22, the earlier initiative is itself unconstitutional. To the extent it is, it would not be a valid initiated statute, and therefore there would be nothing to prevent the state legislature from passing the new statute.

Want a Copy of the Bush v. Gore opinion signed by Chief Justice Rehnquist?

See here. I have no idea if it is genuine, but you can "buy it now" for $1250.

"Florida Voting Rights Advocates Urge DOJ to Block Florida Voter ID Measure"

See this page on the ACLU website.

"Democrats and Labor Get Redistricting Vote on Ohio Ballot"

The New York Times offers this report.

Justice Blackmun in Praise of Judicially Unmanageable Standards

As many readers of this blog know, I have argued that in certain circumstances, it makes sense for the Supreme Court to announce murky (or judicially unmanageable) standards when creating new election rules. Such rules, among other things, give the Court flexibility in crafting the best constitutional constraints on election laws.

This past weekend I was at the Library of Congress looking over some of Justice Blackmun's papers in election law cases. I was particularly interested in the Munro papers, because that case figures prominently in an article I am writing. In any case, I came across this memorandum from Blackmun law clerk (and now Georgetown professor) Chai Feldblum to the Justice, noting some problems with Justice White's draft opinion in Munro. Feldblum recommended some changes to clarify Justice White's draft.

At the bottom of the memorandum in pencil (this may be hard to see on the pdf), Justice Blackmun had written "It may be best to leave it somewhat messy."

Commissioner Thomas Dissent in Berman-Doolittle Case

You can find it here.

New Ninth Circuit Election Law Case

Yesterday the Ninth Circuit decided Caruso v. Yamhill County, upholding an Oregon requirement that ballot measures proposing local option taxes include a statement: "This measure may cause property taxes to increase more than three percent." The court rejected a First Amendment challenge, distinguishing both McIntyre and Cook v. Gralike. This is a very interesting case, given that the statement must be in the initiative itself, rather than part of any report from a legislative analyst.

EAC Commissions Creation of Major Election Law Database

Dan Tokaji has the details here.

In the Election Law Mailbag

I have just received a copy of Adam Raviv, "Unsafe Harbors: One Person, One Vote and Partisan Redistricting," 7 University of Pa. Journal of Constitutional Law 1001 (2005). I look forward to reading it.

Foley on a Voter I.D. Compromise

See here. The e-mail notice I received along with this comment notes: "With this installment, Election Law @ Moritz resumes its regularly scheduled series of Weekly Comments. As a new feature this academic year, from time to time we will post contributions from Guest Commentators. If you would like to submit a Guest Comment for our consideration, please email Laura Williams at electionlaw.osu.edu."

"New voting law sparks lawsuit, racial tension"

AP offers this report, which begins: "Opponents of a new Georgia law requiring voters to show photo identification at the polls are planning a federal court lawsuit challenging the measure, which they fear will lower voter turnout."

California Redistricting Initiative Failing Badly in Field Poll

See here. The measure, Prop. 77, has 32% in favor, 46% opposed, and 22% undecided.

Dorks on Parade

Roll Call offers At Poli Sci Convo, Even The Wonks Are Bored, a particularly unflattering story about last week's APSA meetings (paid subscription required).

A Chief Justice Roberts, The Next Nominee, and the Ideological Balance of the Court

Having correctly predicted on Saturday night that President Bush would nominate John Roberts to be the Chief, I thought I would press my luck and make a few more predictions.

Democrats will not oppose Roberts for Chief. Though there was some talk today among Senate Democrats that the Chief's job is a more important one than an associate justice, it is not more important in ways that matter to Democrats. The Chief's additional duties are administrative and symbolic (putting aside presiding over impeachment trials). He still casts only a single vote on the Court, and his leadership in terms of the Court's direction is going to be more a function of charisma than any formal title. More importantly, exchanging a Rehnquist vote for a Roberts vote won't meaningfully change the balance of power on important questions on the Court. Not only does this give Democrats little reason to fight (the failure to release the SG papers notwithstanding); any alternative nominee is likely to be worse from the Democrats' point of view.

The big battle now shifts to Justice O'Connor's seat. Writing in my own area of election law, I have written about how replacing Justice O'Connor with a Justice Roberts can have profound implications for important election law questions, including the constitutionality of renewed preclearance provisions of the Voting Rights Act (set to expire in 2007 and expected to be renewed by Congress) and the constitutionality of some longstanding campaign finance laws, including many contribution limits and limits on corporate and union expenditures in election campaigns. With Roberts replacing Rehnquist, the balance on those issues will not likely change, meaning the balance of power will fall to the next nominee to the Court---the one who will fill Justice O'Connor's place.

Pressure on the President to Choose a Conservative Minority or Woman. Already there is speculation that President Bush will fill Justice O'Connor's seat with a woman or member of a minority group, especially having nominated a white male to be chief. I suspect that there would be tremendous pressure on him to nominate a very conservative person in this category, such as D.C. Circuit judge Janice Rogers Brown.

If President Bush does nominate Brown, this will be the biggest battle the Senate has seen in decades. Not only election law cases, but the entire set of recent precedents from affirmative action to federalism to possibly even abortion will be on the line. The fundamental nature of the Supreme Court's role will be at stake.

Democrats could filibuster. And Republicans could invoke the "nuclear option," changing the nature of the Senate. The President will have a choice. He could nominate someone like Brown, or someone more likely to preserve the current ideological balance on the Court, perhaps AG Alberto Gonzales. While many Democrats have made noises against Gonzales because of his role in the torture memos, his nomination would be a gift to Democrats---about the best they could expect to get. For this reasons, conservatives are likely to again mount strong pressure against a Gonzales nomination.

The President has a fundamental choice to make, and it will certainly be a difficult one that will mark his most important influence on the direction of the Supreme Court and perhaps the Senate as an institution as well.

Chief Justice Roberts?

With the sad news of the death of Chief Justice Rehnquist, thoughts have already turned to his possible successor. (Update: See also Lyle Denniston's speculation.) In conversations at the APSA meetings this past week (before the Chief's death), I heard much speculation that upon the retirement of the Chief, President Bush would seek to elevate John Roberts to the Chief position.

Now that the Chief has passed away, I would not be at all surprised to see the White House resubmit Roberts' nomination for the Chief position, with Justice O'Connor's position filled later on.

First, if the President intended all along to move Roberts up, this would be the only straightforward way to do so. Second, the Court could function better with a vacancy in an associate position for the portion of the term before a second nominee could be confirmed than with an absent Chief. Third, Justice O'Connor could perhaps be persuaded to stay on for a few more months pending the appointment of her successor, given these new circumstances. Fourth, moving Roberts to the Chief position would give the President a chance to replace Justice O'Connor with another woman. Fifth, the relatively tepid opposition to Roberts now would make confirmation as Chief relatively easy.

The big question is one of timing. How would the Senate react to such a substitution? Would this request require a delay in the hearings? I imagine that much will turn on the views of Senator Specter.

Weintraub/McDonald Statement of Reasons in Berman-Doolittle Case

You can find the statement of reasons posted here. The statement notes that the AO has created a lot of "heat." That is evident from the heated debate taking place on the electio law listserv over the Toner-Mason statement of reasons issued in this case.

Packard on Voter I.D. Rules and Arizona

Ed Packard, writing on the Alabama Election Administration Blog, offers these thoughts and a link to the DOJ letter discussed by Dan Tokaji regarding Arizona's voter i.d. laws.

"DOJ 'Clarifies' Position on ID & Provisionals"

Don't miss this fascinating post by Dan Tokaji. See also this A.P. report.

Election Law Journal 4:3 Now Available; Preview of ELJ 4:4

You can find the table of contents for ELJ 4:3 at this link. Look for ELJ 4:4 in October, featuring Paul Edelman on the mathematics of at-large elections, and part 1 of a symposium on campaign finance disclosure featuring articles by Grant Davis-Denny, Beth Garrett and Dan Smith, Todd Lochner, David Shultz, and Clyde Wilcox.

And what about the timing of the internet rulemaking?

The FEC has issued this press release, "FEDERAL ELECTION COMMISSION REOPENS COMMENT PERIOD FOR RULEMAKINGS."

"Chipping Away at Campaign Reform"

David Broder offers this Washington Post commentary, which primarily concerns the Berman-Doolittle advisory opinion on federal officer fundraising against California's Proposition 77.