"Prop. 77: how it would really work"

Morgan Kousser has written this oped for the San Diego Union Tribune.

Election Protection Effort in NYC

See this press release that I received via e-mail.

"Issue 4 would curb political gerrymandering"

Michael Solimine has written this oped for the Cincinnati Post.

Jim Gardner on Public Office

James Gardner has posted Giving the Gift of Public Office on SSRN. The abstract:

This interpretive essay, written for the Buffalo Law Review's annual essay issue, identifies an increasingly common pathology of American democracy in which voters treat the election of public officials not as an instrumental act designed to influence public policy, but as an opportunity to present public office as a gift to those who have pleased, entertained, or moved them. The reelection of Strom Thurmond to the Senate at age 93 and the election of nearly forty congressional widows to their late husbands' seats exemplify this trend. Although this behavior bears a passing resemblance to eighteenth-century habits of political deference and nineteenth-century understandings of politics as a form of public entertainment, judged by contemporary norms of democratic citizenship it is a corrosive kind of civic corruption akin to patronage. As with efforts to eliminate other forms of patronage, only substantial institutional reforms seem capable of neutralizing this destructive behavior. Such reforms might include moving to a party list system, or creating new figurehead offices, like the presidency in a parliamentary form of government.

Jacobson and McCormick on Posner

Arthur Jacobson and John McCormick have posted The Business of Democracy is Democracy on SSRN. The abstract:

In Law, Pragmatism, and Democracy (Harvard University Press, 2004), Richard Posner champions the work of the Austrian economist, Joseph Schumpeter, who distilled the democratic process down to the election of political officials from among a group of competing elites by the general population. He links this "pragmatic" account of democracy to a broader program of pragmatic adjudication and liberalism. This review critically assesses the empirical and normative grounds of Posner's argument, and accuses him of neglecting the pivotal role of politics, in both his democratic theory and his understanding of pragmatism.

"Pelosi and Leading Democrats Seek to Protect Voting Rights of Gulf Coast Citizens Affected by Hurricanes"

See this press release.

Why Alito Likely Won't Be Confirmed: The Future of the Senate, and the Supreme Court, Rests with the Gang of 14

As I predicted, President Bush has nominated a strong conservative to replace the failed nomination of Harriet Miers. We now have the battle that liberal and conservative interest groups have been anticipating ever since President Bush promised a Supreme Court nominee in the Scalia-Thomas mold.

It all comes down now to the 14 Senators who made a deal to prevent the triggering of the "nuclear option" in the Senate, and the politics of abortion. This is a high stakes game for those 14 Senators. Risk the wrath of the right (if you are a moderate Democrat) or the wrath of the left (if you are a moderate Republican).

I am ready to make my next prediction: Judge Alito will not be confirmed, because Democrats will threaten to use the filibuster for a nominee they will strongly paint as anti-choice. Moderate Republicans, such as Olympia Snowe, won't vote to trigger the nuclear option, and Judge Alito will not get a vote on the floor of the Senate. My level of confidence in this prediction: not high. With the stakes this high, the triggering of the nuclear option is very much in play, and the decline of the Senate as a deliberative institution is clearly in sight. (For background on how the nuclear option will change the nature of the Senate, see my Roll Call oped from April 25).

Winger on Judge Alito's Ballot Access Decision

Richard Winger notes here Judge Alito's decision in Council of Alternative Political Parties v Hooks.

"Spending Big at the Ballot Box to Build"

The Los Angeles Times offers this very interesting report, which begins: "LIVERMORE, Calif. — A housing developer here in the Bay Area's bastion of slow growth is on track to spend nearly $68 per registered voter to pass a ballot measure that would expand the city's boundaries and add 2,450 new homes along one of Northern California's most congested highways. By the time election day dawns Nov. 8, Pardee Homes is expected to have spent more than $3 million to convince just 43,598 registered voters that the company should be allowed to develop 1,400 acres of golden grassland surrounded by rolling hills off busy Interstate 580."

Eleventh Circuit Sets Hearing in Georgia Voter I.D. Lawsuit, Refuses to Lift Stay

Howard Bashman has collected coverage and a link to the court's order here. I would not read anything on the merits into the court's decision to keep the stay in place pending the hearing on the preliminary injunction appeal.

"Say No to Online Soft-Money Loophole"

Trevor Potter has this Roll Call oped (paid subscription required (or here, without a subscription). A snippet: "These reform opponents presumably believe it would serve their interests if the Internet became an outlet for the same soft money that virtually drowned out the modest contributions of average citizens in the 1980s and 1990s, and that Congress banned in 2002. So they are trying to argue that a movement is afoot to 'regulate grass-roots activity' in order to stop any regulation of the way state parties, corporations and unions finance federal political activities that take place online. If they are successful, they will have opened an Internet loophole through which soft money can once again flow freely."

"A First Test for BCRA Penalties"

Roll Call offers this report (paid subscription required), which begins: "An indictment was handed down last week in a case that could send an individual to jail for the first time under the stepped-up penalties for violations under the 2002 Bipartisan Campaign Reform Act. Tom Noe, a 'Pioneer' for President Bush’s 2004 re-election campaign, was charged last week with illegally funneling $45,400 to Bush’s re-election campaign by using two dozen people as “conduits” for illegal contributions."

No action in Texas Redistricting Cases

The Supreme Court's order list makes no mention of these cases, meaning that they will most likely be relisted for a future conference.

Off to Howard Conference on Voting Rights

Regular blogging on Monday.

Roll Call opeds

Morton Kondracke writes To Tame Polarization of Politics, Fix Our Redistricting System. Michael McDonald and Kim Brace write EAC Survey Sheds Light on Election Administration. Paid subscription required.

Article on Texas Redistricting Cases Now Available Without Legal Times Subscription

Here.

Bauer Responds to Democracy 21 Letter Attacking Bauer for Supporting Bopp

Here. This is the ultimate inside baseball moment for those in campaign finance reform. The battle is so vicious, but who else outside of our area of the world would care?

Miers' Withdrawal Follows Predicted Path

Indeed, as predicted, the pretext is a dispute over executive privilege. I figured something was up when Miers was late (again) with her answers to the questionnaire. Now we'll see if my next set of predictions is right: President Bush nominates a strong incendiary conservative who will be blocked by the Gang of 14 but rally Bush's base.

"Congress likely to renew vote act"

The Washington Times offers this report. A.P. offers DOJ Official Urges Voting Rights Renewal.

"527s under scrutiny from states"

Stateline.org offers this story on this report from the Center for Public Integrity.

"The FEC's Third Strike"

Roll Call offers this editorial (paid subscription required), which begins: "The federal courts have now decisively struck down — three times — the Federal Election Commission’s rewrite of the 2002 Bipartisan Campaign Reform Act. It’s now time for the FEC to stop fighting the law and start trying to enforce it. The third strike came Friday, when the full D.C. Circuit Court of Appeals declined to review a three-judge panel’s refusal to overturn District Judge Colleen Kollar-Kotelly’s October 2004 decision that declared invalid no fewer than 15 FEC regulations that she said 'would render the statute largely meaningless.'"

"FEC Declines to Seek Civil Penalties"

Roll Call offers this report (paid subscription required), which begins: "In an enforcement action considered perplexing by some campaign finance watchdogs, the Federal Election Commission declined to seek civil penalties in a recent case despite finding reason to believe that a company had “knowingly and willfully” engaged in a scheme to reimburse employees for donations to federal candidates."

IFES Launches Redesigned Website

The following message has arrived via e-mail:

IFES is pleased to announce that it has launched the new www.ifes.org website. We invite you to visit the site to take advantage of this innovative informational tool for democracy practitioners.

Civil society leaders, election officials, democracy activists, academics, donors and others in the justice sector who are working to advance democracy around the globe will benefit from the updated content and features of the new www.ifes.org.

The website features several enhancements including:
* A comprehensive inventory of IFES democratization initiatives across the globe.
* Streamlined accessibility to IFES publications and other resources such as the Arab Election Law Compendium, the IFES Buyer’s Guide to Election Suppliers, and IFES’ magazine, democracy at large.
* Helpful links to additional IFES websites, including Election Guide, Money and Politics, ACE and more.
* An updated design incorporating photo galleries, feature stories and a research survey database.
* An easy-to-use press site designed to give journalists quick and timely access to IFES experts, events information and the latest press releases.

IFES, one of the world’s leading providers of democracy solutions and elections assistance, has designed its website to connect democracy experts to valuable databases and research tools.

"How to Ensure Accurate, Secure Voting Systems"

EAC Commissioner Ray Martinez III has written this Roll Call commentary (paid subscription required). A snippet:

Since 2000, the National Institute on Standards and Technology, a well-respected government agency staffed by scientists, technicians and engineers, has operated the National Software Reference Library. Containing a collection of more than 7,000 software products in a secured room, the NSRL provides law enforcement personnel, including the FBI, with important data used to identify unknown and suspicious files on computer systems and to meet the need for court-admissible evidence in the identification of software files.

Realizing the potential use of this application to the election process, last year the EAC called on all voting systems vendors to voluntarily submit their proprietary voting system software to the NSRL to create a similar repository for state and local election administrators. The voting system vendors agreed.

Today, the NSRL contains proprietary code and software for most types of electronic voting systems used in this country. In the coming weeks, the EAC is expected to vote on a series of proposed final standards which, among other things, would require that all voting system software, including installation programs and third-party software, be deposited with the NSRL upon completion of a national voting system certification process, in which 41 states currently participate.

"House Moving on VRA"

Roll Call offers this report. Two snippets:

“Section 5 is obviously the key element that has to be reviewed and extended,” said Conyers, who added he believes it will be critical not to overload the legislation with “extraneous material that’s not already on it,” such as suggested provisions protecting the voting rights of former convicts.

Lawmakers also are expected to discuss the possibility of expanding Section 5 to apply nationwide, rather than to selected states with documented histories of discrimination.

Democrats, including Lewis, oppose such an expansion, asserting that it could weaken the act and open it to constitutional challenges.

“That would be the death of that section,” Lewis said. “In the final analysis, there will be a consensus that we should not tamper with the real essence of the act. It’s been very, very effective for the past 40 years.

...

In the meantime, Senate Judiciary Chairman Arlen Specter (R-Pa.) and Sen. Edward Kennedy (D-Mass.), who sits on Specter’s panel, are continuing work on a bipartisan reauthorization bill.

Although the pair had hoped to introduce the legislation following the Labor Day recess, the committee’s schedule, including confirmation hearings for now-Chief Justice John Roberts, have delayed that effort, a Kennedy spokeswoman noted.

D.C. Circuit Denies En Banc Hearing in Shays v. FEC; It Looks Like the FEC Will Write New Regulations and Decline to Petition the U.S. Supreme Court for Cert.

So reports BNA (paid subscription required). See also this Roll Call report (paid subscription required) and this report in The Hill *(free access!).

War Veteran vs. Almost Elector

A.P. reports that Paul Hackett, an Iraq war veteran, is running for Senate in Ohio. He will run in the Democratic primary against Sherrod Brown. Brown, as blog readers may remember was a Kerry elector until it was pointed out that he was ineligible to serve. The winner of the Democratic primary will face incumbent Republican Senator Mike DeWine.

Why AG Gonzales Will Not Be Nominated to Replace Harriet Miers and What We Might Get Instead

The signs are pointing to a withdrawal of Harriet Miers' nomination, probably soon. The biggest sign was the President's non-answer at a press conference today to a question about a withdrawal. I had the same reaction as Ann Althouse: "Note that [President Bush] did not express confidence that she would be confirmed or that she would make a fine Justice. He focused on her general excellence, unrelated to the position she's been nominated for, and on the Senate, stepping up the pressure to give her a fair hearing -- right after turning up the heat about the denial of the documents. It seems as though he wants the Democratic senators to make more of a stink about the documents so that he'll look more credible blaming them for forcing him to withdraw her name. I'll bet they are too smart to make that move, though. Let him twist in the wind while they hold their fire until the hearings. Or maybe even -- crazily riskily -- just go ahead and support her and leave Bush to solve his own problems, without using them for leverage."

The excuse for withdrawal appears to be a fight over executive privilege. The president won't turn over documents needed to show Ms. Miers' views on legal issues that arose in the White House. If that is indeed the basis for withdrawal, it is doubly good news for conservatives, because presumably it would take AG Gonzales out of the running too. There, the administration certainly won't want to turn over such documents (especially related to torture). Gonzales is probably the leading candidate to substitute for Miers who would be attacked by the right.

The flip side of all of this is that the new nominee could well be to the right of Miers, especially on issues like voting rights and affirmative action. Jack Balkin explores the alternative scenarios for nomination. Jack thinks the Gang of 14 might block a more conservative nominee, making it more likely that Bush will nominate a moderate. I disagree with the latter part of this analysis. The Gang of 14 could well block the nominee, but I think this helps Bush. If Bush nominates a Janice Rogers Brown, he gives the conservatives the fight they want, and regains capital with them. If he later fails after the strong Senate battle, he can come back with a more moderate nominee and a more supportive base.

If Bush is smart and wants a strong conservative who will actually be confirmed, he should nominate Judge McConnell. But it is not clear whether Bush really wants a strong conservative on the Court.

"DIRECT DEMOCRACY ON THE BRINK: THE CALIFORNIA SPECIAL ELECTION"

USC will hold this very interesting conference on November 1.

"Democracy in Voters' Hands"

The Washington Post offers this editorial in favor of the redistricting measures in Ohio and California.

"The Value of the Vote: The 1965 Voting Rights Act and Beyond"

I'll be speaking at this conference at Howard University School of Law on Friday, October 28. You can find the program here.

New Survey on Threats to Elections

This five-page survey has been posted by Electionline.org, the Caltech/MIT Voting Technology Project (VTP) and the University of Utah Center for Public Policy and Administration. It seeks to identify and assess a wide range of potential threats to the electoral process. More information on the survey here.

"Drawing New Maps a Daunting Possibility"

The Los Angeles Times offers this report, which begins: "They have no official position on California's proposed redistricting initiative, but county election chiefs across the state dread the prospect of voters passing Proposition 77."

"MARC H. MORIAL: Renew the Voting Rights Act Because It Works"

This commentary appeared in the Chicago Defender.

"No Way to Judge a Judge"

Law.com has posted this oped by David Ettinger on an aspect of proposed California Proposition 73 (parental notification for abortion) (paid subscription required). A snippet of interest to election law:

Hidden toward the end of the nearly 3,000-word initiative is the requirement that each court publicly report annually "by judge" the number of petitions granted and denied in the trial and appellate courts. Thus, if Prop 73 passes, every judge and appellate justice in this state who rules on a minor's petition for a waiver of parental notification will have his or her own abortion scorecard.

It is not difficult to see the mischief that these annual reports could cause. Advocacy groups on either side of the abortion debate could (mis)use a judge or justice's scorecard during contested superior court elections, appellate court retention elections, or even judicial recall elections. It is not far-fetched to imagine a campaign flier proclaiming that Judge X or Justice Y "ordered the killing of 10 unborn children last year," a statement, incidentally, that would not be far from legal accuracy since another thing Prop 73 would do is define "abortion" as "caus[ing] the death of the unborn child."

"Let the Political Bloggers Blog"

Jerry Berman and Adam Bonin have written these letters to the editor appearing in the Washington Post.

"Court May Take Up Texas Redistricting"

Legal Times offers this report (subscription required). (I don't have a subscription, so if someone could e-mail this to me I would appreciate it.)

More Garrett on Hybrid Democracy

Beth Garrett has posted The Promise and Perils of Hybrid Democracy (The Henry Lecture, University of Oklahoma Law School, October 13, 2005) on SSRN. Here is the abstract:

Abstract:
For most Americans, democracy in the United States is not entirely representative in structure, and none of us lives in a pure direct democracy where laws are made only through popular votes. Instead, for over seventy percent of Americans, including those in Oklahoma, government is a hybrid democracy - a combination of direct democracy and representative institutions at the state and local levels, which in turn influences national politics. Hybrid democracy is here to stay, so we need to better understand how its components interact. But even if we were writing on a clean slate and had the ability to choose between a purely representative system and one with some elements of direct democracy, I think we would do well to adopt some sort of hybrid. A system that allows the possibility of the initiative and referendum provides a check on elected representatives beyond the accountability of periodic elections. In this Lecture, I will suggest some of the benefits that a hybrid system can provide in three realms. First, hybrid elections allow candidates to make more credible promises by running on a platform that includes simultaneous enactment of initiatives. The association of an initiative with a candidate may also provide a richer information environment for voters, although recent scholarship draws into question whether voting cues are invariably enhanced by the strategic use of direct democracy by politicians. Second, the initiative process provides a way to circumvent the self-interest of legislators in designing institutions of government. Third, the possibility of using initiatives to enact policy supplies political actors with a tool that can serve majoritarian interests and counter special interest influence in legislative bargaining. As Governor Arnold Schwarzenegger is demonstrating in California, governance by initiative profoundly changes the dynamics of interbranch bargaining, although it does not seem to be a sustainable strategy if used frequently. As I discuss these benefits, I will also underscore the dangers of hybrid democracy and discuss reforms that seek to reduce the perils while maximizing the promise of our hybrid system.

Proposed NY Legislation to Change the Counting of Prisoners for Purposes of Districting

See this Newsday report. Thanks to Joshua Spivak for the pointer.

"Ugly White Districts: What Should Sandy Do?"

Ethan Leib has posted this paper on SSRN. The abstract:

Abstract:
A case recently decided by a three-judge panel in the Southern District of New York, Rodriguez v. Pataki, where plaintiffs challenge the 2002 New York State Senate redistricting plan, presents a new kind of redistricting dilemma. Rodriguez raises the issue of what to do about bizarrely-shaped white districts that are constructed or preserved using race as an obvious motivation - apparently in violation of Shaw v. Reno, 509 U.S. 630 (1993), which held ugly black districts to be violative of the Fourteenth Amendment's Equal Protection Clause - but are adjacent to majority-minority districts that must be preserved in accordance with both Sections 2 and 5 of the Voting Rights Act, the laws forbidding dilution and retrogression of majority-minority districts. Here, I ask what Justice Sandra Day O'Connor should do about unsightly majority white districts that are drawn principally to maintain white majorities, even if such districts also help fashion adjacent majority-minority districts required by the Voting Rights Act.

Gerry Hebert's Important House Testimony on Bailout Under the VRA

You can find it here.

"Miers' Answer Raises Questions; Legal experts find a misuse of terms in her Senate questionnaire 'terrible' and 'shocking.'"

The Los Angeles Times offers this report, which is the most in depth look to date on Ms. Miers' proportional representation/equal protection clause answer on the questionnaire. It also discusses my views on what Miers' Dallas city council experience says about how she could decide voting rights cases if she is confirmed to the Court. In related news, the Dallas Morning News offers Voting rights fight a Miers highlight; Her stance evolved as she considered new information, circumstances. See also my October 6 blog post making these same points.

"Whose Speech is Free?"

Michael Kinsley offers this interesting oped on, among other things, the New York Times's editorial position on the Vermont spending limits case.

Mobile Register Again Editorializes Against Renewing Voting Rights Act

According to the editorial, "It's time to let Section 5 die, and thus parole the South from punishment for its ignoble, distant past."

Off to Voting Rights Conference

I'm off to the University of South Carolina for The Promise of Voter Equality: The Voting Rights Act at 40. Regular blogging to resume Monday.

Hayward on the FEC's Recent Allocation Decision Involving Emily's List

This is a potentially important decision. See here. Bob Bauer, who represents Emily's list, comments here.

"Political Equality and Campaign Cash: Should the Supreme Court Uphold Campaign Spending Limits?"

There will be a forum on the Vermont spending limits case at American University on October 25. Ed Still has the details.

Tokaji on Georgia Voter ID Decision

See here.

More on Miers and Proportional Representation and the Equal Protection Clause

This Washington Post report picks up on a response in the Miers questionnaire first flagged by one of my commenters:

Meanwhile, several constitutional law scholars said they were surprised and puzzled by Miers's response to the committee's request for information on cases she has handled dealing with constitutional issues. In describing one matter on the Dallas City Council, Miers referred to "the proportional representation requirement of the Equal Protection Clause" as it relates to the Voting Rights Act.

"There is no proportional representation requirement in the Equal Protection Clause," said Cass R. Sunstein, a constitutional law professor at the University of Chicago. He and several other scholars said it appeared that Miers was confusing proportional representation -- which typically deals with ethnic groups having members on elected bodies -- with the one-man, one-vote Supreme Court ruling that requires, for example, legislative districts to have equal populations.

"Supreme Court and Election Law" Due Out in Paperback

I know a few people have been assigning my NYU Press book, The Supreme Court and Election Law, in their classes. The press will be publishing a paperback version of the book, and it should be available in December. I don't know the price, but it will certainly be more affordable for students than the hardback. The papervack version is the same as the hardback. I might do a revised version for the Press in a few years.

"Superior Court judge upholds ballot law"

See this news from New Hampshire on the latest ballot order litigation.

News and Commentary on Georgia Voter ID Decision

See A.P.; the Atlanta Journal-Constitution; the New York Times (editorial); Bob Bauer (commentary, also on leadership PAC issue in Congress). You can find the entire opinion here.

"Activists seek say in voting rights changes"

The Monterey Herald (CA) offers this report.

"Despite gains, Voting Rights Act is still a necessity"

Former member of Congress Jack Kemp has written this oped. In testimony before a House Committee yeterday, Kemp took the position that ex-felons should get their voting rights restored.

Miers' Deposition [Correction: Trial Testimony] in the Dallas Voting Rights Litigation is Now Available

You can find it here. One blogger points to an answer by Ms. Miers that suggests she not only had failed to read Chandler Davidson's book on voting rights, but she had not read any entire book in some time. Thanks to Luke McLoughlin for the pointers.

Lots of Good Stuff Up on Moritz Election Law Site

Here is Dan Tokaji on "The Moneyball Approach to Election Reform."

Here is Ned Foley's analysis of the Vermont spending limits case pending before the Supreme Court.

Here (with no apparent apologies to David Letterman) is "The Top 10 Unresolved Election Law Questions."

"Court upholds congressional map, legislative districts to get new look"

A.P. offers this report from Arizona. The opinion is here. Thanks to Steven Reyes for the links.

"Study on 77's Effects Withheld"

Dan Weintraub has posted this very interesting item on his blog. (See this announcement at the IGS website.) Meanwhile, the debate over Kos's support of Prop. 77 continues.

Ms. Miers and Proportional Representation[!] Under the Equal Protection Clause

My ability to add comments has already paid off. In response to my earlier post, "Are We All Chuck Schumer now?", a reader used the comments feature to comment on something very interesting in Ms. Mier's questionnaire to the judiciary committee. Here is the comment and my response:

Comments: Are we all Chuck Schumer Now?
I am not sure whether you have read the Harriet Miers questionairre, but she cites a "proportional representation requirement of the Equal Protection Clause". I am wondering whether or not I am missing something or some case law that establishes this proportional representation requirement and whether her belief in such a proportional representation requirement in the Equal Protection Clause may have an effect on her voting rights jurisprudence, assuming she is confirmed
RH replies: I had not seen that. Very interesting. You can find the quote on page 49 of the questionnaire posted here. Ms. Miers writes: "While I was an at-large member of the Dallas City Council, I dealt with issues that involved constitutional questions. For instance, when addressing a lawsuit under Section 2 of the Voting Rights Act, the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause." I take this as just a slip of the pen, or a confusion of the statutory standards under section 2 with the constitutional standards for vote dilution.

Posted by Bertrall Ross at October 18, 2005 08:54 AM

Breaking News: Court Issues Preliminary Injunction Barring Georgia's Voter Identification Law

I have received only the fourth (and final) portion of the court's 123 page opinion and order. It is too large to post. In the part I have seen, the court holds that the Georgia plan constitutes an unconstitutional poll tax. The court declined to find that plaintiffs could prove a violation of Section 2 of the Voting Rights Act, but reserved judgment on the issue until the full trial.
From the court's summary:

In sum, the Court finds that the four factors for granting a preliminary injunction weigh in favor of
Plaintiffs . In particular, the Court concludes that Plaintiffs have a substantial likelihood of success on the
merits of their claim that the Photo ID requirement unduly burdens the right to vote and a substantial likelihood of
success on the merits of their claim that the Photo ID requirement constitutes a poll tax . The Court also finds that
Plaintiffs and their constituents will suffer irreparable harm if the Court does not grant a preliminary injunction, and that the threatened harm to Plaintiffs outweighs the injury to Defendants and the State that will result from issuing a
preliminary injunction . Finally, the Court finds that entering a preliminary injunction will serve the public interest . Consequently, the Court grants Plaintiffs' Motion for Preliminary Injunction.

In reaching this conclusion, the Court observes that it has great respect for the Georgia legislature . The Court,
however, simply has more respect for the Constitution. Because the Court finds that Plaintiffs have a substantial likelihood of succeeding on their claims that the Photo ID requirement unduly burdens the right to vote and constitutes a poll tax, the Court must enter a preliminary injunction against the Photo ID requirement .10

The Court acknowledges that its conclusion differs from the decisions reached in League of Women Voters v . Blackwell, 340 F . Supp . 2d 823 (N .D . Ohio 2004), Bay County Democratic Party v . Land , 347 F . Supp . 2d 404 (E .D . Mich . 2004), and Colorado Common Cause v . Davidson, No . 04CV7709, 2004 WL 2360485 (D . Colo . Oct . 18, 2004) . All of those cases, however, involved identification requirements that allowed voters to show means of identification other than Photo IDs . Georgia's Photo ID requirement, however, applies to in-person voting and goes one step further than the laws challenged in Blackwell, Bay County Democratic Party, and Colorado Common
Cause .
For instance, Blackwell involved a challenge to an Ohio law implementing HAVA that required individuals who registered to vote by mail and who did not submit acceptable documentary proof of identity with their voter applications to provide "acceptable documentary proof" of their identities prior to voting . 340 F . Supp . 2d at 826 . Such proof could include "a current and valid photo identification," or '"[a] copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows [the voter's] name and address ." Id .
Bay County Democratic Party, in turn, involved a challenge to directives issued to Michigan local elections
officials concerning casting and tabulating provisional ballots, as well as a directive pertaining to proof of
identity for first-time voters who registered by mail . 347 F. Supp . 2d at 410-11 . The directive concerning proof of
identity for first-time in-person voters who registered bymail was revised to allow those voters to furnish the
identification required by HAVA either at the polls or during a six-day period after election day . Id . at 434 . The HAVA requirements, however, allowed individuals who registered by mail to present a current, valid Photo ID or "a copy of a current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter ." 42 U .S .C .A . § 15483 .
Finally, Colorado Common Cause also involved identification requirements that permitted voters to show several forms of identification, including : (1) a valid Colorado driver's license ; (2) a valid ID card from the Colorado Department of Revenue ; (3) a valid United States passport ; (4) a valid government employee Photo ID ; (5) a
valid pilot's license ; (6) a valid United States military Photo ID ; (7) a copy of a current utility bill, a bank
statement, government check, paycheck, or other government document showing the voter's name and address ; (8) a valid Medicaid or Medicare card ; (9) a certified copy of a birth certificate ; or (10) certified documentation of
naturalization . 2004 WL 2360485, at *6 . The Colorado Common Cause court observed that the identification requirement was intended to reduce voter fraud, and concluded that the identification requirement was reasonably related to the interest proffered by the state and was not unduly burdensome . Id . at *10 .
The identification requirements used by Ohio, Michigan, and Colorado, however, are of little relevance to the case now before the Court because those requirements are much less stringent than Georgia's Photo ID-only requirement . Each of the requirements challenged in Blackwell , Bay County Democratic Party, and Colorado Common Cause allowed voters to produce alternative forms of identification as well as Photo IDs . If Georgia's voter identification law permitted use of such alternative means of identification for purposes of inperson
voting, Plaintiffs likely would not have filed this case . In sum, given the unique nature of Georgia's Photo ID
requirement, the Court finds Blackwell , Ba y County Democratic Party, and Colorado Common Cause cases unpersuasive . The Court therefore declines to follow those cases .

"Chvala says he ran state campaign fund"

The Milwaukee Journal-Sentinel offers this report.

"Lockyer sues county over polling stations"

See this news from California about a new ADA lawsuit.

"Prop. 77 inspires unusual alliances"

The San Jose Mercury News offers this report.

Are we all Chuck Schumer Now?

This is the strongest evidence yet that conservatives will no longer be able to disagree with Democrats such as Sen. Charles Schumer who contend that ideology is a legitimate criterion for Senators to consider in deciding whether to support or oppose a judicial nominee.

Will Congress Use VRA Renewal to Undo Georgia v. Ashcroft?

See this AP report. In addition, I think the request for a 25-year extension is likely an opening number, and if it actually made it through could well undermine Section 5's constitutionality in the Supreme Court. Remember, comments are now open.

Comments appear to be working

Give it a try if you have something to add. Comments should be forwarded to me for approval, so that I can keep spam out.

"Voting Rights Act to get review"

The Cincinnati Enquirer offers this report, which begins: "U.S. Rep. Steve Chabot, R-Westwood, is chairman of the House Subcommittee on the Constitution, which begins reviewing the Voting Rights Act of 1965 on Tuesday. The subcommittee expects to hold up to eight hearings through next month in order to review the act and six provisions set to expire in 2007. 'I do think that quite likely the Voting Rights Act will be reauthorized either in the same or similar form,' Chabot said Sunday."

"Ohio Members in Remap Fight"

Roll Call offers this report (paid subscription required), which begins: "With a Federal Election Commission ruling in place allowing them to raise soft money, Ohio Republican lawmakers have begun trolling for several hundred thousand dollars in hopes of defeating a November redistricting initiative that could imperil their political careers." Meanwhile Daily Kos links to this Chuck Todd column talking about redistricting measures in California and Ohio. Meanwhile Rough & Tumble links to Prop. 77 coverage here, here, here, and here. The last linked article is especially worth reading.

"Campaign Financing 'At A Crossroads' "

Eliza Newlin Carney offers this "Rules of the Game" column at National Journal on the two campaign finance cases the Supreme Court will hear in 2006. Meanwhile BNA reports (paid subscription required) that "In an unusual alliance, two prominent Democratic election lawyers are urging support for a Wisconsin anti-abortion group in a Supreme Court case that tests the limits on political advertising (Wisconsin Right to Life Inc. v. Federal Election Commission, U.S. No. 04-1581, cert. granted 9/27/05.) Attorneys Karl Sandstrom and Robert Bauer said in an Oct. 14 briefing that liberal groups should help the anti-abortion group make its case against campaign finance rules limiting television and radio ads. The Democratic lawyers said a range of so-called Section 501(c) nonprofit groups should weigh in for the Supreme Court fight by filing friend-of-the-court briefs."

""Vote Counting, Technology, and Unintended Consequences"

Michael A. Carrier has posted this draft on SSRN (forthcoming St. John's Law Review). Here is the abstract:

The 2000 presidential election had a searing effect on this nation. Few who witnessed the events in Florida could displace the images of election officials peering at punch cards, struggling to determine the intent of voters. Congress, for example, did not forget. Congress did not wish to see the scenes from Florida replayed in future elections. And so, in 2002, it enacted the Help America Vote Act, known as "HAVA," which provided $325 million to the states to replace their punch card voting systems.

Many states have enthusiastically embraced this invitation, replacing punch cards with electronic voting machines, known as direct recording electronic devices (DREs). Given the rapidly approaching 2006 deadline to upgrade, other states are currently considering such activity.

In the rush to solve one problem, however, states may be creating another, far greater, one. To be sure, DREs promise to reduce certain errors, increase access for voters with disabilities, and relieve election officials of the challenge of ascertaining the voters' intent.

But the full panoply of dangers from such systems have largely avoided scrutiny. This Article attempts to remedy this deficiency. In particular, it underscores several disturbing characteristics of electronic voting, including reduced transparency, increased magnitude of error and fraud, and lack of security controls.

I supplement the analysis of the DRE software by examining vote counting flaws in the 2004 presidential election, including machine breakdowns, vote totals that exceeded or underrepresented the number of voters who cast ballots, and incidents in which the machines switched votes from one candidate to another. I also collect circumstantial evidence such as exit polls and pre-election polls that significantly diverged from the official vote count and questionable activity in states such as Ohio. Although such evidence does not automatically prove the existence of error or fraud, it is crucial given the nontransparent nature of the vote counting process and inability to directly uncover fraud.

I conclude by offering recommendations to improve the accuracy and verifiability of vote counting today. In particular, I propose for electronic voting machines a voter-verified paper trail, random audits, open source software, and other recommendations. Only after these proposals are adopted can voters have confidence that the promise of vote counting technology will match its perils.

Enabling comments

Thanks to Loyola's IT department, I now think that I should be able to accept comments. To keep out the junk, however, I require that commenters first register with me. Once I approve your registration, you'll be able to comment without getting further approval from me. When you are ready to post a comment, click on comments and you will find instructions for registering. Hope this works. Update: Comments are not working yet.

Test post

This is a test post.

LA Times Suprisingly Endorses Prop. 75 (Union Dues Measure)

See here.

White House on Miers and the Voting Rights Act

From the October 14 White House Press Briefing:

MR. McCLELLAN: You jumped in before I finished, because the second part of this is what I was just saying, that she will go before the Senate Judiciary Committee and they will have an opportunity to ask her questions, and she will answer those questions in the appropriate manner. And she looks forward to that opportunity so that people can come to know her.

Now, you mentioned constitutional law experience. She has deep knowledge of the Constitution and constitutional law. Among the constitutional law matters that a White House Counsel has to deal with on a daily basis include laws governing war powers, Commander-in-Chief powers, pardons, executive privilege, the appointments clause, the commerce clause, the 1st Amendment, 4th Amendment, which relates to the Patriot Act, the 14th Amendment, and many other areas. So these are issues that a White House Counsel deals with on a daily basis. These are complex constitutional issues that a White House Counsel has to deal with.

And she's -- I would also point out that she is the -- she would be the only Supreme Court Justice who has actually had to comply with the Voting Rights Act and the Constitution in drawing a redistricting map, because she served as a city councilwoman in Dallas, and so she had firsthand experience with constitutional issues when she was on the Dallas City Council.

"Panel Supports Renewal of Voting Rights Act"

Fox News offers this report.

"Signatures pose formidable challenge for third-party candidates"

A.P. offers this report from Pennsylvania.

Congratulations to Election Law Prof. Spencer Overton and Family

...on the birth of their newest child.

"Storms Alter Louisiana Politics; Population Loss Likely to Reduce Influence of Black Voters"

The Washington Post offers this report.

Texas Redistricting Cases Set for Oct. 28 Supreme Court Conference

The updated docket is here and my coverage is here.

"Challenge to Va.'s open primaries is dismissed"

The Richmond Times-Dispatch offers this report. Thanks to Steve Rankin for the pointer.

"PROP. 77 ACTIONS RAISE EYEBROWS; Critics Suggest Governor, Judicial Branch Were Too Cozy"

Howard Bashman has posted the text of this very interesting Daily Journal article.

Blogging Will Resume Friday

See you then.

In the Election Law Mailbag

I have now begun receiving reprints of articles from the recent Fordham Urban Law Journal election law symposium in Volume 32, Issue 3 (May 2005). Jerry Goldfeder has written on terrorism disrupting presidential elections and Richard Winger has written on the 2004 Nader litigation. I believe Richard Briffault has a piece in there on the Vermont spending limits case as well.

I also received the first anonymous election law article that I can remember: Publius, Securing the Integrity of American Elections: The Need for Change, 9 Texas Review of Law and Politics 277 (2005). I am not sure why this piece is anonymous (the author's footnote describes the author as "an attorney who specializes in election issues" and the postmark on the envelope I received was from Washington D.C.---obviously no return address). The article makes what I consider to be the standard Republican arguments for greater ballot "integrity" and against the Democratic view on things like provisional voting and voter i.d. requirements. There is much in here that I disagree with, but nothing to be embarassed about (unless, I suppose, one is a lawyer for the Democrats!). Could this have been written by the anonymous Lonely Centrist?
UPDATE: The latest issue of Public Choice (see here) features articles on the impact of early media reports on the Florida 2000 vote (by John Lott), chads and the use of voting equipment (by Garner and Spolaore) and an article on soft money and legislation to bar soft money (by Gill and Lipsmeyer).

The New Campaign Finance Sourcebook Now Available

A new edition of the very useful Brookings guide is now available for purchase or download. Details here.

Daily Journal Profile

I was recently honored as one of California's top 100 lawyers by the Daily Journal and featured (along with Warren Chrisopher and Tom Meserau) on the cover of their special supplement. You can find the cover and story here.

"City Ethics Panel Urges Full Public Funding of Political Campaigns, Pledges Ballot Effort"

The Los Angeles Times offers this report, with the subhead: "Panel members want the City Council to adopt a 'clean money' system to end the need for donors." An interesting snippet for those of us in the election law field who recall the Pew/Tregila controversy: "Commissioner Sean Treglia, however, opposes the proposal, saying court decisions creating loopholes in public-financing programs put their effectiveness in doubt. 'I'm not convinced full public financing is the answer,' he said. 'A stepped-up form of partial public financing and some new regulations around issue advocacy, independent expenditure campaigns, may work.'"

"Tensions flare over empty seat on Federal Election Commission"

The Hill offers this report.

"Political boundary battle hits ballot for 6th time; Awareness growing, say Prop. 77 backers, including governor"

The SF Chronicle offers this report. Meanwhile, Peter Schrag weighs in on Prop. 77 in the Sacramento Bee.

Hearing Today in Georgia Voter I.D. Lawsuit

See here.

"Miers Seen as Fair on City Council"

This A.P. report discusses Supreme Court nominee Harriet Miers' role in the Voting Rights Act litigation that took place during her tenure on the Dallas City Council. My own more in-depth analysis of that role appears here.

"Prop. 77 Seeks Bipartisan Image"

The Sacramento Bee offers this report, with the subhead: "Backers of redistricting hope to avoid perception of a GOP power play."

Arizona Voter ID Rules Approved

A.P. offers this report, which begins: "Federal officials have approved new Arizona election rules requiring voters to show identification at polling places but allowing those without IDs to cast provisional ballots. The provisional ballots would be counted only if the voters later produce identification at an election office. A requirement that voters produce identification at polling places was a provision of a voter-approved law that appeared on the state's November ballot as Proposition 200. It took state officials until last month to work out how it would be implemented. The U.S. Justice Department approved the procedures Oct. 7 after a review for compliance with the Voting Rights Act, a federal law intended to protect minorities' voting rights."

"Voting Rights Challenges in a Post-Katrina World: With Constituents Dispersed, and Voting Districts Underpopulated, How Should New Orleans Hold Elections?"

Findlaw has posted this very important column. The authors are Kristen Clarke-Avery and M. David Gelfand. It includes the following biographical note: "Kristen Clarke-Avery is a civil rights attorney at the U.S. Department of Justice. She has handled a number of voting rights cases, redistricting matters and election-related issues in Louisiana and other parts of the country. The views expressed in this column are her own and do not necessarily reflect the policies, positions or views of the Department of Justice or the United States. She can be contacted at kclarke@post.harvard.edu. Tragically, M. David Gelfand passed away recently. He was the Ashton Phelps Chair and Professor of Constitutional Law at Tulane Law School. He was also the President of the newly formed From the Lake to the River: The New Orleans Coalition for Legal Aid & Disaster Relief, which will be providing services to New Orleans victims of Hurricane Katrina (wherever they are) and playing a watchdog/oversight role with respect to the federal government's relief funds and efforts. The website for the Coalition can be found at FromtheLaketotheRiver.org."

"Cyber Loophole"

The Washington Post offers this editorial, which begins: "CONSIDER THIS campaign finance scenario: A member of Congress faces a tough reelection race and needs as much financial help as possible. The politician can't legally take money from a corporation or labor union, and the most individuals can give is a few thousand dollars. But the lawmaker goes to a company and suggests another way to help out. He proposes that it pay for his Internet advertising. The campaign's consultants will produce the spots and choose the Web sites; the company need only write the check. And the company's help won't ever show up in campaign finance records."

Bob Bauer reacts negatively to the editorial: "This conduct is, however, illegal under existing law: no new regulation of the Internet is necessary to stop it. The violations�which include but are not limited to a violation of the prohibition on corporate election-related spending�do not depend on the use of the Internet. So the Post is calling for unneeded rules that, failing to solve a real problem, do manage to equip the state with new powers and a fresh rationale to restrict Internet politics."

"Support shifts on absentee vote reform"

The Toledo Blade offers this report.

"Loopholes grow in election law"

The Denver Post offers this report, with the subhead: "As more groups win court battles and find ways to skirt campaign-finance rules, some are considering more regulations."

How Bad Would Prop. 75 Be for California Union Power?

I ask this question genuinely, not rhetorically. The Los Angeles Times featured Prop. 75 Worries Union Leaders today, with the subhead "Many in the rank and file could support the measure, which would limit use of members' dues. Opponents have been slow to rally." It comes along with this George Skelton column chronicling worries among Democrats that their supporters won't show up to vote in the special election.
But Allison Hayward links to Prop. 75 loophole limits its impact in the Sacramento Bee, pointing out that Prop. 75 apparently covers only mandating dues to pay for express advocacy. So, if there is an issue advocacy "loophole," how much will union power be curtailed?

"Dan Walters: Redistricting reform could revive brain-dead Legislature"

See this Sacramento Bee column.

"Using Prisoners to Inflate Rural Political Clout"

Spencer Overton has this interesting post on Blackprof.com, which I have added to my blogroll.

"Voting Rights Advocates Ask Federal Court to Block Georgia Photo ID Law"

The ACLU has filed for a preliminary injunction in the case. Documents and the press release can be found here.

More Andrew Gumbel on Carter-Baker

See this LA City Beat column.

European Court of Human Rights Decision on Felon Disenfranchisement

Kieran Williams writes:

As you may have heard, the European Court of Human Rights has issued an important Grand Chamber judgement regarding felons' voting rights, in Hirst v United Kingdom (II). Here is a link to a detailed press release.

The decision upholds an earlier panel judgement that disenfranchisement is permissible only if there is a clear, direct connection to the crime for which the prisoner was convicted (such as electoral fraud or abuse of office), and should be left to judicial discretion as an aspect of sentencing. It will thus force a dozen European states to move to the narrowly tailored disenfranchisement found in countries such as Germany.

"Recounts: From Punch Cards to Paper Trails"

Electionline.org has issued this report.

"Redistricting initiative would set state apart; But opponents blast Proposition 77 as a 'reckless experiment'"

The SF Chronicle offers this report. In somewhat related news, the LA Times offers Campaign Finance Laws Vex Gov., Foes.

"Life Without the Critical Fifth Vote"

The National Law Journal offers this report, which includes an extensive discussion of the campaign finance cases the Supreme Court will hear this term, with or without Justice O'Connor.

"E-voting hobbled by security concerns"

C|NET News offers this report.

Miers' Role in 2000 Election Litigation

See this Wall Street Journal report (offered without registration), which begins: "President Bush cites many accomplishments of Harriet Miers to explain her nomination to the Supreme Court. One the White House doesn't mention is her successful argument during the disputed 2000 election that Dick Cheney is definitely not a Texan."

"Results cast doubt on future of election financing initiative"

NJ.com offers this report, which begins: "The pilot program for "Clean and Fair Elections" fell well short of its goal this year, and the commission overseeing it remained noncommittal yesterday on how, or if, it will be used in the 2007 state Senate elections." Thanks to Bill Corbett for the pointer.

"The Future of Campaign Finance: Congress, the FEC, and the Courts"

The following invitation arrived via e-mail:

A BROOKINGS BRIEFING

The Future of Campaign Finance: Congress, the FEC, and the Courts
Thursday, October 20, 2005
10:00 a.m. �11:30 a.m.

The Brookings Institution
Falk Auditorium
1775 Massachusetts Avenue, NW
Washington, DC

Campaign finance is yet again under the microscope as politicians, regulators, political parties, interest groups and courts grapple with the fallout from recent reforms. Controversy has arisen over the status of new section 527 organizations, the regulation of political advertising on the Internet, and the future of the presidential public funding system.

The Bipartisan Campaign Reform Act of 2002 was implemented for the 2004 election but uncertainty remains about its impact and future. Congress has several bills to amend federal election law; the FEC is involved in investigations and rulemaking that could redefine the meaning of the law, and the Supreme Court has agreed to hear two important campaign finance cases this term.

Three of the country�s leading experts on campaign finance reform and coauthors of The New Campaign Finance Sourcebook (Brookings 2005), will discuss what was learned from the 2004 election cycle and what developments in Congress, the Federal Election Commission (FEC), and the courts lie ahead. Senior Fellow Thomas Mann will moderate the discussion with Brookings coauthors Anthony Corrado � the Charles A. Dana Professor of Government at Colby College and a nonresident senior fellow � and Trevor Potter, former FEC chair and now a Brookings nonresident senior fellow.

Speakers will take questions after their remarks.

Introduction:
Thomas Mann
Senior Fellow, The Brookings Institution

Panelists:
Anthony Corrado
Nonresident Senior Fellow, The Brookings Institution
Charles A. Dana Professor of Government, Colby College, Waterville, Maine

Trevor Potter
Nonresident Senior Fellow, The Brookings Institution
Former Federal Election Commission Chair

RSVP: Please call the Brookings Office of Communications, 202/797-6105, or by e-mail at communications@brookings.edu or online at http://www.brookings.edu/eventregistration

"Federal Judge Quashes Subpoenas Issued to Reform Groups in Campaign Finance Case"

The Campaign Legal Center has issued this very interesting press release, which begins:

Washington -- A federal trial judge in Washington handed a victory to pro-reform groups in a key campaign finance case today, ruling that subpoenas issued to the groups were irrelevant, burdensome and unduly oppressive.

The case - North Carolina Right to Life v. Leake - involves a challenge to a North Carolina law that limits contributions to independent expenditure political committees. The Campaign Legal Center and Democracy 21, two leading campaign finance reform groups, filed an amicus - or "friend of the court" - brief in the case arguing that the law was a constitutional exercise of North Carolina's power to fight political corruption.

The attorney for the right to life group - James Bopp, Jr., a campaign finance reform opponent - asked the court to re-open the completed discovery process and demanded the two groups provide detailed information about contacts between these groups and 28 other organizations, including National Public Radio. Among many other things, the requests sought information about the sources of the groups' funding.

More on Miers and Election Law

See Bob Bauer here and this KRT report (link via Ed Still).

Harriet Miers and Election Law: Might She Be a Supporter of the Voting Rights Act and an Opponent of Partisan Gerrymandering?

On many issues, we have no indication of the thinking of Supreme Court nominee Harriet Miers. For example, I so far have no idea what she thinks about the constitutionality of limits on corporate and union election-related spending, an issue on which she would likely hold the swing vote on the Supreme Court.

But we do have some basis for predicting Ms. Miers' views on some issues related to the Voting Rights Act and partisan gerrymandering, based on her service as an at large member of the Dallas City Council from 1989-1991. (Thanks to my colleague Ted Seto for suggesting a look down this road.)

This NY Times profile contained the following passage:

One of the most controversial issues before the Dallas City Council during Ms. Miers's single term that ended in 1991 was a battle over whether the city should adopt a plan doing away with council members elected at large, an election method that minority groups in Dallas criticized as marginalizing them from municipal politics.

Ms. Miers, elected as an at-large council member, initially favored the at-large system, but her position evolved to support a proposal that would create a collection of different districts in the city. This was adopted and eventually led to greater representation of blacks and Hispanics in Dallas.

I dug a little deeper into this controversy using the (unfortunately fee-based) archives of the Dallas Morning News (Westlaw and Lexis coverage of this newspaper does not go back that far) and here is what I found.

When Ms. Miers took her at-large seat on the Dallas City Council, the council was already involved in Voting Rights Act litigation over the composition of the council, with minorities arguing for greater representation through districts.

The city council, then with 8 districted members and 3 at large members, considered ways to respond to the lawsuit, including adopting a plan, the 10-4-1 plan, which would have created 10 single member districts, four elected from "quadrant" diistricts, and a mayor (elected at large). When Ms. Miers first came on the council, she was non-committal. "She said she prefers retaining the two at-large seats on the council 'so that there will be someone on the council, other than the mayor, with a citywide perspective.'" James Ragland, 7th Council Member Supports Charter Plan, DMN, June 22, 1989.

By 1990, however, Ms. Miers apparently was convinced of the need for increased minority representation. "Harriet Miers (Place 9, at-large) testified that the 8-3 system was unfair because the number of single-member districts needed to be increased so there would be additional black and Hispanic representation on the Council." Williams v. City of Dallas, 734 F. Supp. 1317, 1379 (N.D. Texas 1990). By August 1990, Ms. Miers was voting to support a 14-1 plan, with 14 single member districts and 1 at large mayor. David Jackson, Lawyers to Propose Settlement in Suit Over Voting Rights, DMN, Aug. 2, 1990. She later supported an appeal to uphold 10-4-1 even though she preferred the 14-1 plan because the 10-4-1 plan had been approved by voters. David Jackson, 6 on Council Want to Appeal Vote Order, DMN, Feb. 3, 1991. The article continued:

Ms. Miers, an attorney, questioned whether 10-4-1 would provide fair representation for minorities as required by the U.S. Voting Rights Act. Although the council plans to discuss the case with its attorneys behind closed doors, Ms. Miers said she would seek to have the council's discussion of a possible appeal made public. "The city has a right to hear those discussions," Ms. Miers said.

The DOJ refused to preclear 10-4-1, and the battle shifted to the shape of the 14-1 plan, with two alternatives on the table at one point. "Ms. Miers said she had questions about both proposals. 'They're very tough issues, and we're just struggling with them as best we can,' she said." David Jackson, Strauss, Miers, Tandy Undecided on 14-1 Plans, DMN, May 20, 1991.

After a 14-1 plan was approved containing 4 African-American majority districts, Ms. Miers told a group of minority lawyers at a bar assocation luncheon that "Incumbent issues caused the maps under consideration to be drawn a certain way....If we can take the issue of incumbency away, we could have a map in a New York minute." Lawrence E. Young, Protecting Incumbents Cited as Factor in 14-1 Map, DMN, May 25, 1991. Ms. Miers defended the drawing of four black majroity districts rather than 5: "With this council, it seems the balance always ways in favor of protecting incumbents or neighborhoods rather than minority voting rights....She said the creation of a fifth black district was 'one component of a very complex set of circumstances that included the protection of incumbents and neighborhoods. Ms. Miers said that throughout the redistricting controversy she did what she thought was right. She noted that she opposed the competing 10-4-1 plan even though that angered many whites." Id. Opponents later criticized her as naive for not recognizing incumbency protection as the reality in all redistricting. Joyce Saenz Harris, Harriet Miers: Reflections of a Lawyer-Politician (Part 1 of 2), DMN, July 28, 1991. In response, Ms. Miers said: "I'd like to say I'm not doctrinaire...I'm not going to be influenced by how my vote is perceived. I want to be respected and I want to be viewed as being trrue to my convictions...But I don't care much what people think. I can't afford to."

What to make of all of this? It is not entirely clear. We appear to have someone sensitive to minority voting rights and skeptical of incumbency protection. Miers may not be the next Sandra Day O'Connor, but her vote in upcoming Voting Rights Act and partisan gerrymandering cases may be just as nuanced (and perhaps unpredictable). At least they would be informed by some real-world experience.

"The Biggest Election Case Since Bush v. Gore?"

See Ned Foley's Electionlaw@Moritz comment, Federal Courts Should Not Run State Elections, on League of Women Voters v. Blackwell. Foley suggests the case may be quite significant.

"Web exclusive: Democrats accuse Schwarzenegger, Prop. 77 campaign of breaking campaign finance laws"

Capitol Weekly offers this report. Link via Rough & Tumble.

"Ballot official calls for tough machine test"

The Sacramento Bee offers this report, which begins: "Secretary of State Bruce McPherson said Wednesday he will create a new office to test voting technology and will require future machines to undergo an Election Day simulation comparable to one failed by a leading manufacturer this summer."

"Population Loss Alters Louisiana Politics"

The New York Times offers this report. A snippet:

Many politicians are also keeping a close eye on population movement within the state.

Within 48 hours after Hurricane Katrina made landfall, Baton Rouge became Louisiana's largest city, doubling to about 800,000 residents. Local officials are now trying to get a population survey up and running to seek federal aid.

Mr. Koepp said this population shift could actually be the early stages of the deterioration of New Orleans' long-term hold over the State Legislature. "If this holds true, there will be a significant political change," he said.

There are now 21 seats in the House and Senate that encompass or touch on Orleans Parish, of 144 total seats statewide.

But if the population fails to return to the parish in coming years, New Orleans may be confined to just a few seats in each chamber through redistricting, Mr. Koepp added. That could change the state's racial and partisan balance.

If evacuees from the Ninth Ward in New Orleans - a reliable bloc of 30,000 black voters that is traditionally easy to mobilize - choose suburban or rural areas over their urban roots in coming years, it could be a political blow to Democrats, said Roy Fletcher, a political consultant from Shreveport who helped elect former Gov. Mike Foster, a Republican.

"It would give a whole lot of a stronger foothold to Republicans in the Legislature and statewide," Mr. Fletcher said. "Louisiana has always been a swing state, a purple state that's both blue and red. You take the Ninth Ward out of that equation and you get a real shot of Republicans winning statewide office."

"Requiring photo ID may deter elderly voters"

The AARP Bulletin offfers this report.

"Elections panel rejects appeal by ousted state legislator"

See this Arizona Republic report, which begins: "The Citizens Clean Election Commission on Tuesday stood by its ruling that a freshman lawmaker who overspent his publicly funded campaign budget to get elected must step down and pay heavy fines."

How is the Miers Nomination Like McCain-Feingold

See this George Will column.

Bauer on WRTL

See these interesting comments.

"Career Lawyers Leaving Justice Department"

NPR's Morning Edition offers this report. It is described on the website as follows: "has been growing between career lawyers and political appointees in the Justice Department's Civil Rights Division. Now the Senate Judiciary Committee is holding confirmation hearings for a new leader of the politically sensitive group. Some career professionals who have left the division recently say they left because they were shut out of the decision making process in a way that did not occur under previous administrations. A spokesman for Justice says that there is no split between political appointees and career lawyers. He points to the division's recent accomplishments in disability rights and human trafficking prosecutions as proof of it's effectiveness." It includes some discussion of voting rights cases. Thanks to Mark Posner for the pointer.

Blogging to Resume Thursday

See you then.

Understanding the Puzzling Miers Choice

President Bush's decision to nominate White House Counsel Harriet Miers to the Supreme Court to replace Justice O'Connor is puzzling, in at least a few ways. First, the timing is odd. The President announced the nomination just before ceremonies for the new Chief Justice, thereby unnecessarily upstaging those ceremonies. Second, the announcement was apparently made without lining up conservative support for the nomination in advance. Read National Review's Bench Memos to see the lack of enthusaisam for the nominee so far, and see the cautious reactions of Democrats to the nomination. Tom Goldstein has already predicted that Ms. Miers' nomination will be defeated, and one cynical observer suggests that the nomination is "a Rovian strategy to pick someone who has little apparent qualifications so the Dems can spend all their capital attacking her. Eventually, Bush will give up and she won't be confirmed. Then, he announces his TRUE pick, and the public runs out of patience for the dems trying to defeat two in a row."

I had initially predicted that the President would nominate Roberts II. "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."

I then backed off this prediction, noting that President Bush seemed to be getting pressure from the right to nominate someone with more conservative credentials, a Scalia or Thomas II.

It appears that Bush has decided to follow the first model. The pitfalls occur if (1) Miers is not seen as sufficiently weighty (especially in comparison to Roberts himself) so that the nominee can use qualifications to make up for any doubts about ideology; (2) Conservatives fail to line up behind the choice. From the Democratic perspective, it is hard to see how a crap shoot that comes with the Miers nomination is worse than the nomination of a Judge Brown or Owen. It could even be that Ms. Miers will not be anti-abortion, and Jack Balkin's suggestion that President Bush wants to preserve Roe may be on target.

"Reformers question Blackwell's motives"

The Toledo Blade offers this report on an initiative to change the method of election administration in Ohio.

WaPo Editorial on the Supreme Court's New Term

The editorial includes the following paragraph:

Last week the court agreed to hear a pair of campaign finance cases that invite it to rewrite settled law on the regulation of money in politics. In one, Vermont is trying to enforce campaign spending limits of the type the court struck down in the landmark case of Buckley v. Valeo , while plaintiffs are challenging the type of contribution limits that the court has repeatedly upheld. In the other, a group of Wisconsin antiabortion activists is seeking to carve a yawning loophole into the McCain-Feingold campaign finance law, which the court only recently upheld. Either of these cases could be enormously destabilizing to election law, which is working pretty well and doesn't need a judicial overhaul.

"Justice Department ratifies redrawn congressional map"

The Atlanta Journal-Constitution offers this report.

"Vote yes on Proposition 77"

The San Jose Mercury News offers this editorial. For a contrary view, see this LA Times oped by Ethan Rarick. You have to like Rarick's intellectual honesty, whether or not you agree with his opinion:

In most districts in California nowadays, it really doesn't matter who you vote for in the general election; the registration figures are so lopsided in favor of one party or the other that the winner already has been effectively decided. So, yes, it makes sense in theory to put some distance between the people who write the electoral map and the people who run for office. Allowing working politicians to pick and choose the voters they represent, rather than the other way around, is a particularly blatant form of self-dealing.

Despite that, I'm going to vote against the proposition. In fact, I would vote against any nonpartisan redistricting plan that applies to congressional as well as legislative districts, as Proposition 77 does.

Here's why. I'm a Democrat, and while I don't think that the nonpartisan redistricting would have much of an effect on the legislative majorities in the California statehouse (where Democrats are likely to keep control of both the Assembly and the Senate), I do think a nonpartisan redistricting could reduce the number of Democrats in California's congressional delegation, lessening the chances that Democrats will ever be able to regain control of the House of Representatives....
I'm all for fairness, but I'm not so noble that I'm willing to lay down my Democratic sword here in California while Tom DeLay and his henchmen disembowel my soul-mates on the dusty plains of the Lone Star State, all the while swinging the federal government further and further to the right.

"VRA, All of It, Forever?"

George Will offers this Newsweek column, with the subhead: "The Voting Rights Act of 1965 was the noblest law of the 20th century. Some of its provisions, however, are now weird�and worse."

Bauer on the Politics of Internet Regulation

See these very perceptive comments at More Soft Money, Hard Law.