Little or No Blogging Through January 1

I have also temporariliy turned off comments, so that I don't have to wade through the literally hundreds of spam comments that come to this blog each week.

Enjoy the winter break; see you on January 2.

"FEMA promises to hasten delivery of address list"

See this news from Louisiana. Thanks to Jeff Wice for the link.

Bob Bauer Expresses Skepticism on Citizen Assembly Proposal

See here.

"Resident asks to argue in voting suit; Puerto Rico native opposes federal court view on single districts"

The Orlando Sentinel offers this report.

"Atlanta council seat hangs on court decision"

The Atlanta Journal-Constitution offers this report. At issue is what counts as a valid write-in vote.

"GOP Plans 527 Push"

Roll Call offers this report (paid subscription required), which begins: "After failing in their last-ditch effort to attach 527 legislation to a must-pass bill earlier this week, House Republican leaders plan to make restricting the activities of the fundraising groups a key part of their early 2006 agenda. ...After the House adjourned Monday morning, Hastert sent out a press release lauding the year’s accomplishments. In a brief look ahead to next year, Hastert named as top priorities passing tax reconciliation, doing further work on immigration and 'curbing the abuses of 527 organizations.'"

Trevor Potter Responds to Attack on Campaign Legal Center

Following up on this post, Trevor Potter responds.

More Briefs in WRtL

The Campaign Legal Center has posted four amicus briefs supporting the FEC in the Wisconsin Right to Life case. So far, I can't find a link to the government's brief, due yesterday. UPDATE: The government's brief is here.

"Overhaul of state electoral system sought; Legislation would create a 'citizens assembly' to propose changes to voters."

The Sacramento Bee offers this report.

"Was the 2003 Texas Congressional Redistricting Unfair to Democrats?"

The New editor has this post on Texas redistricting.

President Bush on the Voting Rights Act Renewal

From yesterday's press conference:

Q Mr. President, in making the case for domestic spying, could you tell us about the planned attacks on the U.S. that were thwarted through your domestic spying plan? And also, on the issue of race, since you brought up the issue of Katrina, 2005 gave us your defense of yourself on race, and some are still not sold on that. In 2006, what are you giving to the nation on the issue of race, as we're looking to the renewal of the Voting Rights Act in 2007 and things of that nature?

THE PRESIDENT: Yes, thanks. April, the fact that some in America believe that I am not concerned about race troubles me. One of the jobs of the President is to help people reconcile and to move forward and to unite. One of the most hurtful things I can hear is, Bush doesn't care about African Americans, for example. First of all, it's not true. And, secondly, I believe that -- obviously I've got to do a better job of communicating, I guess, to certain folks, because my job is to say to people, we're all equally American, and the American opportunity applies to you just as much as somebody else. And so I will continue to do my best, April, to reach out.

Now, you talked about -- and we have an opportunity, by the way, in New Orleans, for example, to make sure the education system works, to make sure that we promote ownership. I think it is vitally important for ownership to extend to more than just a single community. I think the more African Americans own their own business, the better off America is. I feel strongly that if we can get people to own and manage their own retirement accounts, like personal accounts and Social Security, it makes society a better place. I want people to be able to say, this is my asset. Heretofore, kind of asset accumulation may have been only a part of -- a single -- a part of -- a segmented part of our strategy. We want assets being passed from one generation to the next. I take pride in this statistic, that more African Americans own a home or more minorities own a home now than ever before in our nation's history, not just African Americans; that's positive.

I still want to make sure, though, that people understand that I care about them and that my view of the future, a bright future, pertains to them as much as any other neighborhood.

Now, you mentioned it's the Voting Rights Act. Congress needs to reauthorize it and I'll sign it.

"Expert: New Orleans elections most challenging in history"

The Shreveport Times offers this report.

"Panel Orders Manual Recount in Va. AG Race"

A.P. offers this report. It quotes one of the attorneys as saying: "'The more the ballots are handled, the more risk there is of human error." This was quite a contentious claim in the Florida 2000 election controversy culminating in Bush v. Gore.

"Hold the Line; The Texas redistricting case is not a winner for Democrats."

Slate has just published my commentary on the Supreme Court's decision to take the Texas redistricting cases. It begins:

Democrats around the country were delighted when the Supreme Court recently announced it would hear a set of challenges to the controversial Tom DeLay-inspired re-redistricting of Texas's congressional districts--a move that helped ensure continued Republican dominance of the U.S. House of Representatives. Supreme Court review holds out the hope that the court will strike down the districts, perhaps leading to some Democratic gains in Congress. But it is not at all clear that a ruling to strike down the districts is good for Democrats, or for the country as a whole, in the longer term. If the court begins to scour redistricting plans for partisan unfairness, it will be another step toward solidifying Supreme Court control of the political process--something that should seem a little less palatable to Democrats, if they think back to Bush v. Gore.

Campaign Legal Center Worried About FEC Recess Appointments; Others React, Accusing CLC of Hypocrisy on Issue

The Campaign Legal Center has issued a press release, on the new FEC nominations. A relevant part:

The apparent intention to push these nominees through as recess appointments, without debate or an up-or-down vote, would deny the public the right to give these nominees serious scrutiny. And the background of the nominees themselves raises serious questions about whether they would firmly enforce campaign finance law, or continue the agency's 'business as usual' tendency to protect powerful political interests, rather than the public interest in clean elections.

"Council puts recall election back on track"

Rosemead has put its recall election back on track, after postpoining it in reliance on the Ninth Circuit's Padilla v. Lever case. See this report, which indicates that DOJ has sent a letter saying it won't raise Voting Rights Act objections. For background, see here.

"ACORN Defeats Anti-Voter Legal Attacks; Group's Voter Registration Efforts Vindicated as Baseless Lawsuits Collapse"

ACORN has put out this press release, which begins: "Today, ACORN (Association of Community Organizations for Reform Now) announced that the last of three politically-motivated lawsuits filed against the group in the wake of its successful 2004 voter outreach drive has been 'dismissed with prejudice.' Each of the three cases (two in Florida and one in Ohio) were brought by partisan law firms based on unfounded allegations of 'voter fraud' against the organization -- and all three cases have been dismissed."

"New Orleans elections may be held in April; Three lawsuits seek earlier date for voting postponed by governor."

The Shreveport Times offers this report.

"Photo ID bus gets little use; Tour averages fewer than 11 cards a county"

The Atlanta Journal-Constitution offers this important report, which begins: "The Georgia Licensing On Wheels bus was supposed to make it easier for elderly and poor people to get the photo identification they need to vote under a controversial new law. The idea was to bring photo IDs to the estimated 300,000 voting age people who don't have driver's licenses. When announced by Gov. Sonny Perdue's office in August, officials said the bus could issue up to 200 ID cards per day. But in three months of traveling the state, the aging bus has broken down three times and issued just 471 photo IDs. That's fewer than 11 per county visited. Critics say the low numbers show that one 15-year-old bus is a feeble response to concerns that the law will disenfranchise poor, elderly and minority voters. Perdue says the numbers show ID cards for voting are not in great demand. Either way, Georgians getting IDs from the bus are happy not to stand in long lines at driver's license service centers."

"Experts: Hispanic district is challenge"

The South Florida Sun-Sentinel offers this report, which begins: "KISSIMMEE -- Osceola County officials wonder how they can satisfy the concerns of the U.S. Justice Department about Hispanic voting rights without creating a commission district so oddly shaped that it might invite legal challenges."

"Bar codes on ballots proposed to fight voter fraud"

See this news from New Hampshire.

"Elections Canada talking with Greens"

See this report in the Ottowa Citizen, which begins: "Elections Canada is in talks with the federal Green Party over possible violations of federal election law by its leader, Jim Harris, The Canadian Press has learned. The discussions are based on a letter of complaint filed by Matthew Pollesel, the party's former assistant national organizer. Pollesel alleges that the former grassroots party has been hijacked to gain access to federal election subsidies provided under the new elections-financing law."

Texas Redistricting Commentaries

Ron Brownstein writes Redistricting Case is Court's Chance to Stop Partisan Excess in the LA Times. The Christian Science Monitor editorializes "Let Voters Fix a Gerrymander." The Washington Times responds to an earlier NY Times editorial on the topic. My own views on the Texas cases will appear soon.

Lenhard FEC Appointment as "Payback" for Novak Testimony?

I was waiting to see who was going to be the first to mention that new FEC nominee Robert Lenhard is married to Viveca Novak, a reporter for Time magazine who recently testified before the grand jury investigating the Plame Affair and potential liability for President Bush's Chief of Staff, Karl Rove. The first mention I have seen comes in this post by Arianna Huffington on the "Huffington Post" blog. But she not only mentions the connection; she suggests the FEC appointment was motivated to thank Novak for her testimony, which some believe has helped Karl Rove. "Imagine that: Novak provides Bush's Brain with a possible get-out-of-jail-free card and -- just weeks after she tells Fitzgerald things Rove's lawyer desperately wants the special prosecutor to hear -- Bush taps her hubby for the FEC post. Now I'm not saying that one is payback for the other. But it sure is convenient. It may not be a case of quid pro quo but, if you were to make a list of things that would begin to repair the damage done to the credibility of the media, this sure wouldn't be among them."

One problem with this theory is that Lenhard's name has been in play for this position for a year and a half, well before anyone could have imagined such "payback." On June 2, 2004, I linked to this AP report on efforts by Senator McCain to block Lenhard's appointment to the FEC as a replacement for the pro-reform FEC commissioner, Scott Thomas.

I suppose the Lenhard-Novak story is an illustration of the occupational hazard of both spouses being Washington players. But the Huffington Post allegation is unfortunate, and does not appear to be based on reality.
UPDATE: The Lenhard nomination talk (and opposition) dates back to 2003.>

"The right to vote is the key to good government"

Ed Packard, author of the Election Administration blog, has written this commentary in the Birmingham News.

"AP: Frist AIDS Charity Paid Consultants"

See this report, which begins: "WASHINGTON - Senate Majority Leader Bill Frist's AIDS charity paid nearly a half-million dollars in consulting fees to members of his political inner circle, according to tax returns providing the first financial accounting of the presidential hopeful's nonprofit."

"McCain, Shays Offer Lobby Reform Bill, Minus Feingold, Meehan"

Roll Call offers this breaking news report (paid subscription required), which begins: "Fresh off a victory over the White House on anti-torture legislation, Sen. John McCain (R-Ariz.) on Friday afternoon teamed up with Rep. Chris Shays (R-Conn.) in introducing a measure to overhaul lobbying laws, becoming the first Congressional Republicans to join a growing Democratic chorus for reform. But conspicuously absent from their efforts are Sen. Russ Feingold (D-Wisc.) and Rep. Marty Meehan (D-Mass.), their longtime partners in tightening campaign finance rules. The four had planned to co-sponsor the measures, but Feingold and Meehan backed off after they failed to resolve fundamental differences with the Republicans. McCain and Shays favor new disclosure requirements, while Feingold and Meehan want to go further and reign in lobbyists’ contact with lawmakers."

"House GOP Drops Campaign Finance Measure"

A.P. offers this report.

Bauer on von Spakovsky nomination to the FEC

Bob Bauer offers this insightful analysis. A snippet:

And yet: von Spakovsy is an agent, not a principal, whose actions in the Voting Section, one can be sure, were faithful to the expectations and directives of his superiors. Now these same superiors wish to move him to the FEC where, replacing a Republican Commissioner, he may well prove to be a reliable Republican vote on issues important to his party. No surprise there: the President would not conceivably appoint to a Republican seat an individual without ties to the party or demonstrated sympathy for its outlook. This is the likely significance of his laments about Democratic campaign finance, written in l997: this was the Republican party line at the time, and he will most probably follow it now, as would any other individual named by the President to that Smith seat.

Democrats can assume, then, that von Spakovsy will lend a friendly ear to the Republican complaints about "527s." This is a true shift in the alignment of Republicans on this issue: his predecessor, Brad Smith, defied Republican orthodoxy on this issue, remaining true to his constitutional objections to regulatory overreach and to his distaste for partisan manipulation of the rules. Smith’s was a refreshing presence in this way. But all such good things must end because terms, such as Smith’s, must end; and the change would have come with anyone named to Smith’s seat. In this respect, a nominee such as von Spakovsky is no surprise: not at all out of the ordinary. Democrats can have no real complaint. And there is some cause for holiday cheer that von Spakovsky will trade his apparent influence at the Voting Section for one of six votes at the FEC.

"The Business of Voting"

The New York Times offers this editorial on the Diebold controversies.

"Criminal probes entangle numerous fund-raisers; 8 Pioneers and Rangers face wide range of allegations"

The Toledo Blade offers this report.

"Gerrymanders and Judges"

The Wall Street Journal offers this editorial.

"Bush Picks Controversial Nominees for FEC"

The Washington Post offers this report. See also this Dallas Morning News report.

Breaking News: FEC Nominees Announced

The White House has issued this press release (to be buried on Friday night?):
President George W. Bush today announced his intention to nominate four individuals to serve in his Administration:

The President intends to nominate Robert D. Lenhard, of Maryland, to be a Member of the Federal Election Commission, for the remainder of a six-year term expiring April 30, 2011. Mr. Lenhard currently serves as Associate General Counsel for the American Federation of State, County and Municipal Employees, AFL-CIO. He previously served as an Associate with Kirschner, Weinberg & Dempsey. Earlier in his career, Mr. Lenhard worked for the Amalgamated Clothing and Textile Workers Union, AFL-CIO. He received his bachelor's degree from Johns Hopkins University and his JD from the University of California, Los Angeles.

The President intends to nominate David M. Mason, of Virginia, to be a Member of the Federal Election Commission, for the remainder of a six-year term expiring April 30, 2009. Mr. Mason currently serves as Commissioner of the Federal Election Commission. He previously served as a Senior Fellow in Congressional Studies at the Heritage Foundation. Prior to that, Mr. Mason was Deputy Assistant Secretary of Defense. Earlier in his career, he served as a Legislative Assistant to Senator John Warner and Legislative Director to Representative Tom Bliley. Mr. Mason received his bachelor's degree from Claremont McKenna College.

The President intends to nominate Hans von Spakovsky, of Georgia, to be a Member of the Federal Election Commission, for the remainder of a six-year term expiring April 30, 2011. Mr. von Spakovsky currently serves as Counsel to the Assistant Attorney General for the Civil Rights Division at the Department of Justice. He previously served the Justice Department as a trial attorney for the Voting Reform Initiative. Prior to that, Mr. von Spakovsky served as a government affairs consultant. Earlier in his career, he was Assistant Vice President, Counsel and Secretary for Confederation Life Insurance Company in Rehabilitation. Mr. von Spakovsky received his bachelor's degree from Massachusetts Institute of Technology and his JD from Vanderbilt University.

The President intends to nominate Steven T. Walther, of Nevada, to be a Member of the Federal Election Commission, for the remainder of a six-year term expiring April 30, 2009. Mr. Walther is currently a Partner at Walther, Key, Maupin, Oats, Cox & LeGoy, a law firm he co-founded in 1972. Earlier in his career, he was an attorney at Jones Vargas. Mr. Walther received his bachelor's degree from the University of Notre Dame and his JD from the University of California, Berkley.
One can have various opinions about these nominations (I expect a lot of fireworks from Democrats, from reformers and from Senator McCain), but the misspelling of my alma mater in the Walther bio is inexcusable.

"Gov. Mark Warner & 243,000 Disenfranchised Americans"

Spencer Overton offers this post on Blackprof.com.

Hans A. Von Spakovsky for FEC Commissioner???

That's the rumor. That would be sure to create some controversy; see this New Yorker report on Van Spakovsky's DOJ voting rights activities.

"Sharpton Returns Public Funds"

The Washington Post offers this report, which begins: "Al Sharpton has agreed to pay back $100,000 in public funds he received for his failed bid to win the 2004 Democratic presidential nomination, after the disclosure that he had exceeded federal limits on personal expenditures for his campaign."

"1898 riot designed to disfranchise blacks"

The Charlotte News and Observer offers this fascinating report, which begins: "The 1898 riot and coup d'etat in Wilmington that killed an unknown number of black residents actually was a planned insurrection that white supremacists spent months organizing. The violence was part of a statewide effort -- with a pivotal role played by The News & Observer and other newspapers -- to put white supremacist Democrats in office and stem the political advances of black citizens, according to a draft report released Thursday by the state-appointed 1898 Wilmington Race Riot Commission. The incident is the only known violent overthrow of a government in U.S. history. Afterward, white supremacists in state office passed the laws that would disfranchise a race of people for generations -- until the civil rights movement and Voting Rights Act of the 1960s." The report itself is here.

"Ex-GOP official found guilty on two counts; Tobin faces up to seven years in prison"

The Concord Monitor offers this report, which begins: A "jury convicted former national Republican Party official James Tobin yesterday on two counts of telephone harassment for his role in a plot to jam Democratic phone banks on Election Day 2002 in New Hampshire. But the federal jury acquitted Tobin on the most serious count, conspiracy to violate voters' rights."

"Lindblom and Harrington: The Justice Department puts politics over policy"

Marjorie Lindblom and Robert Harrington have written this oped in the Austin-American Statesman.

"The Pew Charitable Trusts Announces Renewed Support for Groups Tracking Money in Political Campaigns and Monitoring Campaign Finance Laws"

The following press release has arrived via e-mail:

(Philadelphia, PA) -- The Pew Charitable Trusts announced today a series of grant renewals to leading national nonpartisan organizations working to track and monitor implementation of the new federal campaign finance system. Continuing a decade-long commitment to increasing public trust and confidence in U.S. elections, the Trusts’ grants reflect the importance of solidifying progress made over the last five years to reduce the impact of unregulated soft money in federal campaigns and increase public participation.

"Although significant challenges remain, the nation’s electoral system has made progress since the late 90's, when the public believed soft money overwhelmed the voices and dollars of average Americans," said Rebecca W. Rimel, President and CEO of The Pew Charitable Trusts. "We are pleased our support could help inform a national dialogue about campaign finance and assist in building a foundation for positive change. Today's grants are designed to continue that progress and will support organizations to examine how federal campaigns are adjusting to the new rules and work to ensure the accountability and transparency continues.”

The grants are:
Campaign Legal Center (CLC) $2.2 million over two years for general operating support. CLC represents the public in administrative and legal proceedings where the nation’s campaign finance and related media laws are enforced. Its president is Trevor Potter, former chairman of the Federal Election Commission, who served in the Reagan Administration’s Department of Justice and as assistant general counsel to the Federal Communications Commission.

Center for Responsive Politics (CRP) $900,000 over two years for general operating support. The CRP is the nation’s leading nonprofit, nonpartisan resource for tracking money in federal elections. Founded in 1983 by two former U.S. senators, one Democratic and one Republican, the CRP’s mission is to create a more educated voter, an involved citizenry and a more responsive government. It is directed by Larry Noble, former general counsel of the Federal Election Commission and president of the Council on Government Ethics Laws.

Committee for Economic Development (CED) $500,000 over one year to help business leaders educate their colleagues about the need for effective implementation of campaign finance reform. CED is an independent, nonpartisan organization of 250 business and education leaders. For more than 60 years, CED has brought the experience and insights of business leaders to bear on major issues facing the nation. It is directed by Charles Kolb, who served in both Reagan administrations and that of George H.W. Bush.

Democracy 21 Education Fund (D21EF) $700,000 over two years to monitor and ensure that campaign finance laws at the federal level are effectively implemented and for public education. D21EF’s mission is to ensure the integrity and fairness of government decisions and democratic elections. It was founded by Fred Wertheimer, president of Common Cause from 1981 to 1995 and one of the nation’s most tireless nonpartisan watchdogs for effective and ethical government.

When the Trusts began its investment in this area in 1996, Americans were concerned about the health and legitimacy of the U.S. democratic process. A 1997 NBC/Wall Street Journal poll found 77 percent of respondents thought campaign finance reform was needed. Elected officials personally solicited millions of dollars in soft money contributions from corporations, labor unions and wealthy individuals -- prompting the question of whether these contributions gave rise to the appearance of corruption in the legislative process. Moreover, millions of dollars worth of campaign advertisements ofunknown origin, placed with undisclosed funding, streamed onto U.S. television and radio.

To help respond to the situation, the Trusts, along with many other leading organizations and individuals, began supporting groups working to objectively examine and document the role of soft money in politics. Our support has been directed to organizations working to: develop a body of research and data to fully understand the nature of the problem; communicate those findings to the public and policymakers; identify incremental practical policy solutions; and monitor campaign finance laws and policies.

“Campaigns and elections are the primary means through which governments derive their authority and are an entry point for citizens to participate in public life,” said Rimel. "We are pleased to support these and other organizations, working at the state and federal level, to solidify gains made over the last decade and to identify new approaches that could expand participation in the democratic process."

TONER ELECTED CHAIRMAN OF FEDERAL ELECTION COMMISSION--McDonald to serve as Vice Chairman

The following press release has arrived via e-mail:

WASHINGTON -- Members of the Federal Election Commission have elected
Michael E. Toner as Chairman and Danny L. McDonald as Vice Chairman for 2006.

In December of each year, Commissioners elect a Chairman and Vice Chairman to serve for the upcoming calendar year. The Federal Election Campaign Act requires that the Chairman and Vice Chairman be of different political parties, and states that a member may serve as Chairman only once during a six-year term of office.

Vice Chairman-elect Toner, a Republican, was nominated to the Federal Election Commission by President George W. Bush on March 4, 2002 and appointed on March 29, 2002. Mr. Toner was confirmed by the United States Senate on March 18, 2003

Prior to being appointed to the FEC, Mr. Toner served as Chief Counsel of the Republican National Committee. Mr. Toner joined the RNC in 2001 after serving as General Counsel of the Bush-Cheney Transition Team in Washington, DC and General Counsel of the Bush-Cheney 2000 Presidential Campaign in Austin, TX.

Before joining the Bush campaign in Austin, Commissioner Toner was Deputy Counsel at the RNC from 1997-1999. Prior to his tenure at the RNC, Mr. Toner served as counsel to the Dole/Kemp Presidential Campaign in 1996.

Mr. Toner received a J.D. cum laude from Cornell Law School in 1992, an M.A. in Political Science from Johns Hopkins University in 1989, and a B.A. with distinction from the University of Virginia in 1986. He is a member of the District of Columbia and Virginia bars as well as the United States Supreme Court bar, the Fourth U.S. Circuit Court of Appeals, and the U.S. District Courts for the District of Columbia and the Eastern District of Virginia.

Vice Chairman-elect Danny L. McDonald, a Democrat, has previously served as both Chairman and Vice Chairman.

Prior to his initial appointment in 1981, the Sand Springs, Oklahoma, native served as General Administrator of the Oklahoma Corporation Commission. Additionally, he served as Secretary of the Tulsa County Election Board and as Chief Clerk of that Board. Commissioner McDonald was a member of the Advisory Panel to the FEC's National Clearinghouse on Election Administration. He currently is President of the American Council of Young Political Leaders.

Commissioner McDonald received a B. A. Degree from Oklahoma State University and attended the John F. Kennedy School of Government at Harvard University. He has served as a member of the JFK School Advisory Board for State and Local Government.

Created in 1975, the Federal Election Commission is an independent federal agency established to enforce limitations and prohibitions on contributions to federal candidates and committees, to require them to disclose their financial activities, and to administer the public financing program for Presidential elections.

Supreme Court of Canada to Hear Case on Prohibiting Media Reports of Election Results Until Polls Close on the West Coast

This news release notes that the Supreme Court of Canada will hear the case of Paul Charles Bryan v. Her Majesty the Queen, et al. (B.C.) (Crim.) (31052). The lower court had upheld the restriction as constitutional. Thanks to Colin Feasby for the information.

"Democratic Panel Backs Public Financing Reform"

Roll Call offers this report (paid subscription required), which begins: "A key panel convened by the Democratic National Committee has 'strongly endorsed' reforming the presidential public financing system, weighing in on the debate over what to do with the 30-year-old program that is widely acknowledged to be broken."

Plaintiffs' Briefs Filed in Vermont Spending Limits Case

Allison Hayward has posted the links.
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Padilla v. Lever Continues....

In my LA Times oped from earlier this week, I urged the Ninth Circuit to reconsider its opinion in Padilla v. Lever, or at least indicate that the ruling does not extend to recall and initiative petitions filed at the time of the court's decision. Orange County has now filed a petition for rehearing en banc (I have the file, but it is too large to post), and Real Parties in Interest have filed a motion to petition for rehearing as well, making some very interesting arguments in their proposed petition about the Zaldivar case relied upon by the panel in Padilla. You can find that proposed petition here.

"New tests fuel doubts about vote machines"

The Miami Herald offers this report, with the subhead: "A top election official and computer experts say computer hackers could easily change election results, after they found numerous flaws with a state-approved voting-machine in Tallahassee." A snippet:

[Leon County election chief Ian] Sancho first clashed with Diebold in May, when he teamed up with a nonprofit election-monitoring group called BlackBoxVoting.org, which has made a crusade of showing that electronic voting machines are subject to fraud. BlackBox hired Herbert Thompson, a computer-science professor and strategist at Security Innovation, which tests software for companies such as Google and Microsoft.

Thompson couldn't hack into the system from the outside. So Sancho gave him access to the central machine that tabulates votes and to the last school election at Leon County High.

Thompson told The Herald he was ''shocked'' at how easy it was to get in, make the loser the winner and leave without a trace. The machine asked for a user name and password, but didn't require it, he said. That meant it had not just a ''front door, but a back door as big as a garage,'' Thompson said.

From there, Thompson said, he typed five lines of computer code -- and switched 5,000 votes from one candidate to another.

''I am positive an eighth grader could do this,'' Thompson said.

"Congress, voters, justices and lines in the sand"

Linda Campbell offers this column in the Fort Worth Star-Telegram on the Texas redistricting cases. See also this Houston Chronicle editorial.

"Reed proposes online registration of voters"

The Seattle Post-Intelligencer offers this report.

"No deal reached on voting measure"

A.P. offers this report from Ohio, which begins: "COLUMBUS - Republicans in the Ohio House and Senate tried to meet halfway on a bill that would dramatically change the state's elections laws, couldn't do it, then went home for the holidays. That was fine with the Democrats, who liken the changes to an attack on voting rights. The House on Wednesday rejected Senate amendments to a bill that would make major changes to Ohio election law after concerns were raised about the effect on local elections and other issues."

"The Texas Redistricting Cases and the Failure to Call for a Response"

Tom Goldstein has this post on SCOTUSBlog.

"Analysis Finds Serious Flaws With New Jersey Voter Fraud Report"

The Brennan Center has posted this press release, which begins: "A new analysis conducted by the Brennan Center for Justice at NYU School of Law and Dr. Michael McDonald, an elections expert at George Mason University, found factual and methodological errors in a recent voter fraud report submitted to the state Attorney General in September. The report claimed to have uncovered deep problems of voter fraud in New Jersey. In its continuing effort to scrutinize the accuracy of claims of voter fraud, the Brennan Center enlisted Dr. McDonald’s assistance in analyzing the report’s underlying data. The analysts found serious methodological problems with the report, echoing the problems with the notoriously flawed 'suspected felon' purge lists in Florida in 2000 and 2004. They cautioned election officials not to rely on the flawed report and urged the Attorney General to follow the normal statutory procedures for maintaining the state’s voter registration rolls."

"Board Plans Fight to Deny Trustee's Seat to Inmate"

The Press Enterprise (Riverside, CA) offers this report.

"The '66 Remap That Forged Samuel Alito"

Roll Call offers this fascinating report (paid subscription required) on the experiences of Judge Alito's father in the New Jersey redistricting efforts in the 1960s.

"One Person, One Vote Is Vital--When It's Applied Within Reason"

Norm Ornstein offers this Roll Call commentary (available without a subscription through AEI) on the Texas redistricting cases and Judge Alito.

"Can State Ignore Its E-Vote Law?"

Wired News offers this report, which begins: "E-voting rules head to court this week in North Carolina, where election officials stand accused of ignoring a tough new state law designed to raise the bar on procedures to ensure machines are secure and accurate."

"State GOP leader claims voter fraud"

A.P. offers this report from New Hampshire, which begins: "The head of New Hampshire's Republican Party filed an election-law complaint yesterday against the former manager of Manchester Mayor Bob Baines's unsuccessful re-election campaign. State GOP Chairman Warren Henderson said Geoff Wetrosky signed an affidavit that he intended to live in New Hampshire after the Nov. 8 election, but left for South Dakota. Henderson said Wetrosky's vote was thus illegal. Republican Frank Guinta upset Baines, a Democrat, in that election."

Ohio Senate Approves Voter ID Law on Almost Party Line Vote

See this report in the Cleveland Plain Dealer, this AP report, and this analysis by Dan Tokaji with this follow-up.

"Redistricting Tom DeLay"

The New York Times has this editorial on the Texas redistricting cases. See also this report, originally in the Dallas Morning News.

"Regional Primary System Won't Fix Presidential Woes"

R. Lawrence Butler offers this Roll Call commentary (paid subscription required), which begins: "Former President Jimmy Carter and former Secretary of State James Baker III, co-chairmen of the Commission on Federal Election Reform, are right to decry the frontloading of the presidential primary system ('Time to Reform the Presidential Primary System,; Dec. 5, 2005). Unfortunately, their proposed solution of four regional primaries at one-month intervals after Iowa and New Hampshire would only institutionalize the problem, not fix it."

"Four states reach election agreement"

A.P. offers this report, which begins: "Election officials in four Midwestern states have reached an agreement aimed partly at making sure people aren't registered to vote in multiple states. The agreement among secretaries of state in Missouri, Kansas, Iowa and Nebraska calls for the creation of a task force to study ways of cross-checking voter registration rolls in the various states. The task force also is to study joint training of election officials, testing of election systems and ways to improve election security procedures, as well as the creation of standard rules for international election observers." The agreement itself is here. Thanks to Doug Chapin for the links.

Silencing of Irvine City Council Critics?

See this very interesting report in the OC Weekly, which begins: "When we last visited Larry Agran's crusade to quash the First Amendment, Irvine's lapsed progressive politician had proposed a so-called 'Ethics Ordinance' that might have sent to jail any City Council colleague who criticized him or delved too closely into his alleged cronyism. But after the scheme was exposed by the Weekly and labeled 'Orwellian' by The Orange County Register, Agran has devised a new tactic--discrimination against an entire worker class--which could be passed by his council majority on Tuesday Dec. 13. Titled 'Incompatible Employment or Service,' the new paragraph states: 'Because of their uniquely important, visible, and elevated status and responsibilities as elected officials, the mayor and members of the City Council, and by extension their executive assistants, shall not engage in compensated employment or service for the purpose of lobbying for any private person or organization before any government agency.'" For more on Agran's original proposal, see here.

Texas Redistricting Media Coverage and Commentary

See reports in the New York Times; Washington Post; Los Angeles Times; A.P. Howard Bashman collects more links here.

Lyle Denniston seeks to gain some insight into the Court's direction by looking at why the Court granted a hearing in only four of the seven cases. He reasons:

A closer analysis than was available earlier in the day Monday of the questions the Court will be hearing in the Texas cases suggests strongly that the Court is seeking to refine its review of so-called "mid-decade redistricting." That is the question of whether a state, once it had a lawful congressional boundary lines plan in effect, can adopt a replacement plan before there is a new ten-year national Census.

That question, of course, involves both the braoder question of whether mid-decade redistricting is ever allowed constitutionality, when a valid plan is already in effect, and the more particularized question of whether mid-decade redistricting is allowed when it is done for purely partisan purposes.

In one of the two cases the Court did not agree to hear -- docket 04-10649, Henderson v. Perry -- the broader question is the only one raised. The Court was asked in that case to decide whether, once a valid map had been ordered by a federal court, congressional boundaries could be changed before a new Census "in the absence of any substantial shift in population, a politicallly neutral change in circumstances, or some other event evincing a legitimate regulatory purpose?" Equally broadly, the case of Lee v. Perry (05-460) -- also not granted -- raised the question of whether the Constitution's "silence" allows a state "to engage in repeated reapportionment (more than every ten years)."

By contrast, one of the granted cases, Jackson v. Perry (05-276), for example, asked whether it violates the Constitution for a state to redraw "lawful districting plans in the middle of the decade, for the sole purpose of maximizing partisan advantage." (emphasis added) Other granted cases phrase that issue in a similarly refined form.

Breaking News: Supreme Court Agrees to Hear Texas Redistricting Case; Will a Justice Alito Make a Difference?

After so many relistings, this is a surprise. According to Lyle Denniston, the Court agreed to hear four of the seven appeals. "Those four appear to raise many if not all of the key issues, including whether the Court can fashion a standard for judging when partisan gerrymandering is excessive."

This case originally was sent back for reconsideration in light of Vieth v. Jubelirer. In that case, the Court split 4-1-4 (more details here), with four Justices believing partisan gerrymandering cases non-justiciable, four Justices wanting to impose a reinvigorated test for judging partisan gerrymanders, and Justice Kennedy in the middle, agreeing the cases were justiciable, but rejecting all proposed tests for separating impermissible partisan gerrymanders from the permissible use of party information in redistricting. Both Chief Justice Rehnquist and Justice O'Connor were in the block of 4 urging non-justiciability.

So what does the replacement of Rehnquist for Chief Justice Roberts and the likely replacement of Judge Alito for Justice O'Connor mean for the outcome in this case? It would mean nothing unless either of these Justices were to switch positions from their predecessors and agree such cases should be justiciable (putting those Justices in line with the four more liberal members of the Court---though it is not clear that this is a liberal-conservative split). It could be that Justice Kennedy also has finally decided where he stands on the question. The case will likely be argued in April. Stay tuned.

UPDATE: Lyle Denniston's updated post reports that the petitions granted raise issues including the constitutionality of mid-decade redistricting and voting rights issues. The lower court opinion (not published, but available on Westlaw at 4 Election L.J. 321) rejected the argument that mid-decade redistricting is unconstitutional ("The rule the University Professors and other plaintiffs propose would require us to apply an established doctrine in a novel way, with uncertain basis and effect. We add to these concerns the question of whether the entire contention is outside the mandate of the remand order.") It also failed to reconsider the voting rights issues ("The G.I. Forum, Congresswomen, and Texas-NAACP on remand return to their claims that the Texas plan impermissibly burdens minority voters in violation of the Voting Rights Act and the Equal Protection Clause of the Fourteenth Amendment. Each would tie these claims to partisan gerrymandering. The contention is that these violations occurred in the effort to gain partisan advantage, however else the effort may be flawed. We examined and rejected all of the claims in detail in our previous opinion. [FN86] As these claims are beyond the scope of the mandate we are not persuaded that we should revisit them.")

Any examination of the Voting Rights issues will be done in the shadow of controversy over the DOJ's granting of preclearance to the Texas redistricting under section 5 of the Act. That issue is not directly before the Court but the analysis in the now-leaked report---and the politics surrounding preclearance---could color how at least some of the Justices view the voting rights issues in the case.

UPDATE 2: Here is the Supreme Court's order list, noting two hours for the consolidated hearings in these cases.

UPDATE 3: The timing. Apparently the Court has expedited the briefing schedule (opening brief 1/10; state's brief 2/1; reply 2/22) and set argument for March 1. It is significant that the Court set the case for March 1, given that the Court was filling its April calendar and already has cases set for hearing that day. Presumably the Court wants to expedite things in anticipation of the 2006 congressional elections. Perhaps I'm reading this wrong, but it looks like the Texas primary is March 7. So what good would expediting do? Would the Court order a new primary?

Some history is instructive here, copied from Lowenstein and Hasen, Election Law--3d 3d (2004) at page 306:

The District Court on the remand of Bush [v Vera from the Supreme Court] redrew thirteen congressional districts and declared void the primaries that had already been held. See Vera v. Bush, 933 F.Supp. 1341 (S.D.Tex. 1996). New runoff primaries were ordered to be held in those districts at the same time as the general election in November. In a runoff primary, candidates of all parties run against each other. If one candidate wins a majority, he or she is elected. If no one wins a majority, a runoff election is held between the top two vote-getters.

Because a primary was mixed with the Texas general election by reason of the District Court's order, the "straight-ticket lever" that Texas includes in its voting procedures could not apply to the House elections in the thirteen districts, which undoubtedly caused some voters unknowingly to fail to vote in the House races. In the three districts in which no one won a majority in the November primary, a run-off election had to be held in December. This could easily have affected the results in a close election, since turnout in a December run-off figured to be far lower than in the November presidential election.

UPDATE 4: Why did the Court list the case six times before deciding to hear it? After all, if there were 4 Justices to hear the case, that would have been evident before. I see three possibilities:
1. Justice Kennedy has finally decided what he wants to do in these cases, or perhaps he was swayed by an argument of the plaintiffs (such as that mid-decade redistricting for partisan gain is unconstitutional, no matter what else is).

2. Chief Justice Roberts wants to weigh in on these cases.

3. One of the Vieth dissenters was preparing a summary affirmance, and one of the Justices in the majority did not like what was there. Shades of the dispute in Larios. This reminds me of what happend in Harper v. Virginia Board of Elections, recounted in my book, The Supreme Court and Election Law. By a 6-3 vote, the Supreme Court was prepared to uphold the constitutionality of the poll tax. Justice Goldberg prepared a dissent from the Supreme Court's summary affirmance. Justice Black, who was in the majority in upholding the poll tax, did not like what was in the dissent and called for a full hearing, apparently with the expectation that the Court would issue an opinion rejecting the view of the dissenters. Justice Black got burned. Three Justices changed their votes over the summer, and the opinion released after argument was 6-3 striking down the poll tax, with Justice Black in dissent.

Lyle Denniston's post now sets out the questions presented in the petitions. Here are some links to early stories on the decision to hear the Texas case: AP; Washington Post; Bloomberg; Reuters. The Reuters story erroneously reports that the three-judge court was reviewing the DOJ's preclearance decision and that the Supreme Court will now be ruling on that question.

"Putting a chill on the initiative process; An appeals court ruling that requires petitions to be multilingual in certain areas could short-circuit propositions and recalls"

The Los Angeles Times has published my oped this morning. It begins: "A LITTLE-NOTICED ruling from the U.S. 9th Circuit Court of Appeals last month threatens to throw a monkey wrench into California's initiative process, and it has already been used by City Council members in Rosemead to block a recall election. The court should reconsider the case, and in the meantime indicate that its ruling does not apply to recall and initiative petitions already in circulation at the time of the court's decision in late November."

More on Judge Alito and Voting Rights

Ken Starr and Ronald Cass write Alito's Sticky Thicket in the Boston Globe. The Dallas Morning News editorializes on the same topic.

"Let's Shift Gears in Voting-Rights Enforcement"

Heather Gerken offers this Roll Call commentary (paid subscription required). It concludes: "As I have written elsewhere, it would be easy to tweak the preclearance process in light of these cutting-edge administrative law models, providing greater accountability, more flexibility, and broader community involvement in Section 5's administration. Administrative law should supply the new paradigm for voting-rights enforcement. While we might lose a bit in terms of rhetoric--the grandeur of rights discourse is hard to beat--we would gain a set of practical regulatory tools that will do a better job of protecting minority voters in the long run."

"Conference Urges Fixes to Presidential Financing"

Roll Call offers this report (paid subscription required). A snippet: "Political observers believe its increasingly likely that, if the system is left untouched, no one will participate in it at all in 2008."

"PERSPECTIVE: Only certainty under voter ID is longer lines, more confusion"

A.P. offers this analysis. See also this Toledo Blade report.

Stephen E. Hershkowitz to Sandler, Reiff & Young

So reports the Washington Post.

"Campaign cash kept after the fact; It's legal for lawmakers to keep leftovers, but some say it shouldn't be"

A.P. offers this report from North Carolina.

Overton on the DNC Primary Schedule

See here.

"Playing with the process?"

The Fort Worth Star-Telegram offers this editorial on the DOJ Texas redistricting controversy.

"Court rejects Democrat's argument in contested AG's race"

A.P. offers this report from Virginia. It begins: "RICHMOND, Va. -- A court ruled on Friday that more than 500,000 ballots in the contested attorney general's race will not be rerun through vote tabulators in the upcoming recount." Link via the Southwest Virginia Law Blog.

"Justice Department appointees favored power over law in redistricting"

The Houston Chronicle offers this editorial.

"Staff Opinions Banned In Voting Rights Cases"

The Washington Post offers this extremely important report (too bad it is on page 3 on a Saturday in the newspaper). It begins: "The Justice Department has barred staff attorneys from offering recommendations in major Voting Rights Act cases, marking a significant change in the procedures meant to insulate such decisions from politics, congressional aides and current and former employees familiar with the issue said." The article follows up on this must read article in the Dallas Morning News. There is little question in my mind now that when Congress renews the preclearance provisions of the Voting Rights Act, it should consider ways to deal with the politicization at the DOJ. The solution that appeals to me the most at this point is making DOJ grants of preclearance appealable to a three-judge court. I also hope Congress will consider more novel ideas, such as Heather Gerken's proposal.

"Voting-rights friction building inside Justice; Recommendations no longer allowed by career staff in cases, critics say"

The Dallas Morning News offers this must-read article.

"Group sues N.C. over voting equipment"

A.P. offers this report, which begins: "A civil-liberties group sued two state agencies yesterday, asking a judge to prevent three companies from selling voting equipment because it contends that officials failed to properly review and assemble software code from their machines."

"Elections board will go to prosecutors"

The St. Louis Post-Dispatch offers this report.

"Another partisan appointment"

The St. Petersburg Times offers this editorial, which begins: "In choosing a new secretary of state, Gov. Jeb Bush picked a woman with impressive credentials in every aspect of the job except the most important one: overseeing fair and accurate elections."

Lazarus on Alito and One Person, One Vote

Edward Lazarus has written Why Judge Alito's View on "One Person, One Vote" May Be Even More Important than His View on Roe v. Wade for Findlaw. There is much in here with which I disagree. My own views were expressed last week in this Findlaw column.

Federal District Court Strikes Down Rule Preventing Unions from Using Automatic Payroll Deductions for Union Political Activity

You can find the decision in Pocatello Educ. Ass'n v. Heideman, D. Idaho, No. CV-03-0256-E-BLW, 11/23/05 here. Thanks to Steven Sholk for the pointer.

"More Choice in Elections"

John Anderson has this letter to the editor in today's NY Times.

"Court reviewing dispute over Florida's system of voting"

A.P. offers this report, which begins: "An unsettled legal fight smoldering since Florida's hotly disputed 2000 presidential election rekindled Wednesday in a Miami federal appellate court Three members of the 11th U.S. Circuit Court of Appeals heard arguments on whether the state's current system of voting violates the Constitution because some Floridians vote on electronic touch-screen machines and others on optical scan ballots."

More coverage of Prop. 77 hearing

Sacramento Bee and Los Angeles Daily Journal (paid subscription required).

"Voting Machines Under Scrutiny; States Face a Jan. 1 Deadline to Meet Reliability Standards"

The Washington Post offers this report.

Photo ID Issues in Alabama

Ed Packard offers these thoughts.

"Modernizing the presidential public financing system"

The Hill has published this oped by FEC commissioners Thomas and Toner.

Report from Oral Argument in the California Supreme Court in the Prop. 77 case

I attended oral argument this morning at the California Supreme Court. Although Prop. 77 failed at the polls, the Court denied a motion to dismiss the case as moot. I am very happy about that development, because, as I argued in a Daily Journal oped, the Court's interim order created a great deal of confusion over the standards for taking an initiative off the ballot through pre-election review when the measure's circulation fails to "substantially comply" with California law. Chief Justice George began the argument by expressly noting that Prop. 77 has this "life after death" so that the Court can give guidance for preelection review in the future. It is especially good that the Court can address this issue dispassionately now in a mooted case, rather than in the midst of an election campaign where its ruling is going to have important immediate political consequences.

It appears that at least four Justices (C.J. George, and Justices Baxter, Chin, and pro tem Justice Aldrich) will endorse a "likely to mislead voters test." Justice Werdegar was the only Justice who expressed skepticism about this test openly (though I suppose Justice Moreno's comments indicated some sympathy with this position as well; Justice Kennard, recovering from recent surgery on her leg, will participate in the decision but was not at oral argument). Justice Werdegar's position was that examining discrepancies under a likely to mislead voters standard is going to inject the courts too much into the political thicket, putting the courts under a great deal of pressure in more of these kinds of high profile cases.

I think that Judge Werdgar has the better of the argument here, especially when coupled with the practical difficulties of implementing such a standard. As I noted in my earlier oped: "how does one prove that voters are likely to be misled? How many voters must have been misled before a court should remove a measure from the ballot?" The Chief Justice noted that there were no affidavits showing that any voters were misled in the Prop. 77 case, but it should be pretty easy in a future case to find someone who will claim to have been misled. For this reason, I much prefer the position put forward by the AG's office: a bright line test is necessary to keep courts out of the political thicket, especially when it concerns an issue that is completely in the control of initiative circulators and where the penalty at most delays consideration by the voters rather than denies it entirely.

Two other issues of note at the argument. There was much concern from Justice Baxter about intentionality. Should it matter when a proponent intentionally fails to comply with an initiative requirement statute to obtain strategic advantage? Also, Justice Werdegar and others were concerned about the propriety of post-election review. She suggested courts were in an impossible situation when they would be asked to declare a measure passed by the voters void based on something that happened in the circulation process.

Part of the answer to this last question should come from legislative action. The legislature should change the initiative qualification schedule somewhat to allow sufficient time for judicial review. Right now, courts must work under tremendous time pressure and political pressure to try to achieve fair results in these cases.

An opinion should issue within 90 days of argument.

Off to California Supreme Court to Watch Prop. 77 Argument

I will either live blog from the hearing or I will report after the hearing if live blogging is not feasible.

"No vote fraud plot found"

The Milwaukee Journal-Sentinel offers this very important report on findings by the U.S. attorney: 'We don't see a massive conspiracy to alter the election in Milwaukee, one way or another." Link via Ed Still.

Likely Contentious FEC Rulemaking on Coordination Rules Gets Underway

The NPRM is here. Bob Bauer's opening salvo is here. I expect a hot debate; there is a lot a stake for the parties in these rules.

Foster v. Love II?

A local Louisiana television station reports Federal judge reopens challenge to state's open-primary system. It begins: "A Baton Rouge federal judge soon may decide whether Louisiana will again hold elections for Congress in October. In court documents made public Tuesday, U.S. District Judge Frank Polozola reopened a decade-old case challenging the open-primary system, scheduling a hearing on the matter for Jan. 23. The move was prompted by a motion filed late last month by Gov. Kathleen Blanco and Secretary of State Al Ater, asking Polozola to change a 1998 ruling based on a new law the Legislature passed this summer."

"Refocusing on Race"

Grant Hayden has posted this article on SSRN. Here is the abstract:

This paper, prepared for a symposium on voting rights in the George Washington Law Review, is a call to refocus attention on the role of race in politics. In recent years, many voting rights scholars have shifted their attention away from the plight of minority voters. Indeed, the issue of race came up in this symposium only obliquely, if at all, as part of a discussion of other issues. And this is more than a bit unusual, for race has been a driving force in the development of much of the law of democracy over the last several decades.

Of course, there is more to politics than race. The 2000 presidential election fiasco, coupled with the passage of the Help America Vote Act and predictions (mostly correct, it turns out) of a close presidential election in 2004, made us focus on ballot access and integrity in a way that we haven’t since the passage of the Voting Rights Act. Significant new legislation and Supreme Court opinions in the areas of campaign finance and partisan gerrymandering in the last couple of years have made those issues especially relevant. And when it comes to the law of politics, we all recognize the need to strike while the iron is hot--and ballot access, campaign finance, and partisan gerrymandering are certainly the hot issues of the last election.

But the relative inattention to the role of race in politics may reflect more than the temporary rise of other issues. It may also reflect a broader belief that, when it comes to race, we’ve done about all we can, especially when it comes to the larger, structural issues. The thinking goes something like this. The problem of minority access to the polls was largely resolved in the 1960s through enforcement of the Voting Rights Act. The problem of minority vote dilution has proven more difficult, but the creation of majority-minority (or, more recently, coalition) districts under sections 2 and 5 of the Voting Rights Act has effectively remedied that issue. In any case, that remedy appears to have reached its limit, both because there are few places left to draw additional majority-minority districts and because the creation and maintenance of such districts may actually reduce minority influence in political affairs.

The belief that problems of minority political participation have been solved, or perhaps more accurately, that there is not that much more we can do about them within existing legal structures, comes at a critical time. Several portions of the Voting Rights Act, including section 5, come up for reauthorization in 2007. Allowing section 5 to expire without replacing it with something comparable will eliminate one of the most flexible legal tools for countering the constantly evolving methods of effectively reducing meaningful minority political participation.

This paper, then, is a plea to refocus attention on the issue of race. Part of this project must involve making sure we continue to set new goals as the old ones are achieved. Another part involves making sure that we recognize that some of the constraints that prevent minority groups from fully realizing their potential in a democratic society are of our own, or the Supreme Court’s, making, and that what we have created, we can undo (or at least question). The paper, then, is a call to remain vigilant in policing the many intentional and unintentional ways in which the political rights of racial minorities may be infringed upon. And, more generally, it is an argument to think more broadly about the possibilities that may exist to improve minority participation.

"Voters take back elections"

USA Today has this editorial.

"Election panel clears Issa in bankrolling of Davis recall drive"

The San Diego Union-Tribune offers this report. Bob Bauer comments.

"Senate considers voter-ID provision"

The Cleveland Plain Dealer offers this report. In somewhat related news, AP reports Bill Would Limit Secretary Of State's Campaign Activities.

"Voters, activists put heat on judges; Interest groups, playing to voter resentment, mount TV attack ads"

The Chicago Tribune offers this report.

Sholk on Pay to Play in New Jersey

Steven Sholk has published New Rules for Local Contracts: A Guide to Navigating the Pay-to-Play Rules for Legislative, County, and Municipal Contracts in the New Jersey Law Journal (paid subscription required).

Two Views of the DOJ's Section 5 Texas Decision

At Findlaw, Mark Posner writes Evidence of Political Manipulation at the Justice Department: How Tom DeLay's Redistricting Plan Avoided Voting Rights Act Disapproval. A snippet: "in this column, I'll argue that this is not a case of an honest disagreement between lawyers. Rather, there is strong objective evidence that politics prevailed over the requirements of the Voting Rights Act."

Over at the National Review Online, Abigail Thernstrom and Edward Blum write Gerrymander Slander: Democrats cry foul on Texas redistricting. A snippet: "Minority voting strength was not, in fact, reduced as a consequence of the new districting lines. Under the old map, Texas sent two black representatives to the U.S. House of Representatives, one from Houston, the other from Dallas. The new plan added a third black district, and raised the number of majority Hispanic districts from seven to eight." And this concession/prediction: "We are happy to concede that the pre-clearance provision of the Voting Rights Act has become a partisan gerrymandering tool that has been used by both parties to further their electoral interests. All the more reason to question the continuing need for that temporary, emergency provision 35 years after it was initially scheduled to expire. But almost no one in Congress is questioning it, and most observers believe the provision will be renewed once again — for another 25 years."

No Ruling Yet Again in Texas Redistricting Cases

So reports Lyle Denniston. I am more convinced than ever that we are looking at a summary affirmance with one or more dissents (for reasoning, see here).

"Time to rescue political speech"

The Rocky Mountain News offers this editorial on the WRTL case pending at the Supreme Court.

"New Orleans Elections and the Civil War"

Thad Hall has this interesting post at "Election Updates."

"Ohio Equal Voting Case Survives"

Dan Tokaji has posted this interesting item on his "Equal Vote" blog.

Thernstrom on Alito and One Person, One Vote

See this Wall Street Journal oped (paid subscription required). A snippet: "The reapportionment decisions are now what Sen. Specter calls 'super-precedents': There is literally zero chance that the court will revisit population equality in legislative districts. Judge Alito himself has called one person, one vote a 'bedrock principle.' But the unfinished business of the apportionment cases remains unfinished. No one should profess shock or horror if, in 1985, Samuel Alito joined Justices Frankfurter and Harlan -- and might today express the concerns of Justice Thomas over race-based districting." My own views on this topic are here.

"The Number One Reform"

The NY Times ran this editorial in its NY editions on New York redistricting reform.

"Time to Reform the Presidential Primary System"

Jimmy Carter and James Baker offer this Roll Call oped (paid subscription required). A snippet:

The Carter-Baker Commission has endorsed the proposal of the National Association of Secretaries of State to create four regional primaries, held after the Iowa caucus and the New Hampshire primary at one-month intervals from March to June. The regions would rotate their position on the calendar every four years. The NASS plan would substantially expand participation in the selection of presidential nominees and give voters the chance to evaluate presidential candidates over a period of three to four months. The commission’s recommendation seeks the change for the 2008 primaries.

We believe that it is important for the parties to maintain control of their own primaries. Therefore, we would encourage the two parties to make the needed changes in their primary schedule. If the parties don’t take action, they risk losing that power to Congress, which should make the desired change through federal legislation if the parties remain unwilling to do so.

"Fixing the Game"

The NY Times offers this editorial on the leaked DOJ memos regarding Texas redistricting. On that topic, see also this Roll Call report (paid subscription required). A snippet:

Tim Storey, redistricting analyst for the National Conference of State Legislatures, said it is difficult to predict the short-term or long-term fallout from the Post’s revelations about the Justice Department.

Storey said the timing of the article is "an extraordinary coincidence," considering that Congress is beginning to consider whether to renew Section 5 of the Voting Rights Act, which requires 16 states to have their Congressional boundaries pre-cleared by the Justice Department.

But Storey noted that as a practical matter, the revelations change nothing unless the Supreme Court decides to hear appeals to the Texas redraw.

"The re-redistricting in Texas has been litigated in numerous courts and on numerous grounds and so far has withstood the litigation," he said.

"Feb. 4 Elections In New Orleans Are Postponed"

The Washington Post offers this report on a delay of 8 months in local elections approved by New Orlean's governor.

"Gonzales Defends Approval of Texas Redistricting by Justice"

The Washington Post offers this report. See also reports here and here in the New York Times. UPDATE: See also this Dallas Morning News report, which quotes Nate Persily as follows:

Redistricting expert Nathaniel Persily, a law professor at the University of Pennsylvania, said it was certainly plausible for Justice lawyers to approve the map because overall it did boost minority representation, with white Democratic lawmakers the main targets.

'No one broke the law here ... for all the nefarious partisanship behind the re-redistricting,' he said.

"Regulators give press exemption to Missouri political blog"

A.P. offers this report.

"Former rep asked to drop campaign spending lawsuit"

Following up on this post, the Manchester Union leader offers this report, which begins: "Dover — The new city attorney wants a resident to drop a campaign spending suit against newly elected Councilor David Scott, saying the local ordinance limiting how much money candidates can spend is unconstitutional and unenforceable."

Dagan on Campaign Finance Reform

Hanoch Dagan has posted The Currency of Democratic Participation on SSRN. I read this piece in draft, and it is a must read for anyone interested in issues of campaign finance reform, equality, and vouchers. Here is the abstract:

Campaign finance reformers claim that the flow of contributions and expenditures undermines both political equality and the quality of public discourse. Their opponents criticize the regulation of political money, arguing that spending and giving money are legitimate forms of political speech, deserving constitutional protection. This debate is now deadlocked.

With reform skeptics, this Essay brackets any collectivist concern about the effect of money on politics and refuses to distinguish the salient moments of the election period from day-to-day political participation. And yet, although my conclusions vastly differ from the typical recipes of reformers, they also depart quite significantly from the usual reaffirmation of the status quo advocated by reform skeptics.

This Essay studies the individual right to democratic participation, understood as the right to participate in a political discourse composed of a delicate blend of preferences and reasons. It argues that spending money on political causes can be a valid form of communicating citizens' preferences and their relative intensity, and thus a legitimate component of this language of democratic participation. Unfortunately, this potential is currently unrealized and, furthermore, money currently threatens the integrity of our democratic discourse for two reasons: it reflects preferences in a distorted way due to wealth effects, and its use for politics may not leave enough space for reason-giving.

If the expense of money is to enjoy the constitutional protections of political speech, political money needs to be purified from these two disturbing characteristics. This conversion requires the law of democratic participation to develop a new device: a clearinghouse of money for political causes. This clearinghouse should readjust the size of political donations and expenditures to reflect the intensity of the givers' and spenders' preferences. It should also ensure that political money is accompanied by reasoned communication, or that its use is otherwise structured to prevent undue dominance of preferences over reasons. Approximating success in accomplishing these two tasks is a condition for the rehabilitation of money expenditures in politics and its legitimate integration into our democratic discourse.

Regular Blogging to Resume Tuesday

I'm off to DC to meet with some folks at the National Academies of Sciences on voting reform issues. I'm having trouble with blogging from my Treo, so regular blogging likely will resume some time Tuesday.

Another Explosive DOJ Voting Rights Memo Leaked to the Washington Post; Could It Affect Supreme Court's Decision in Texas Redistricting Case?

Today's Washington Post features Justice Staff Saw Texas Districting As Illegal; Voting Rights Finding On Map Pushed by DeLay Was Overruled. The newspaper also posted the 73-page document here. This comes on the heels of this earlier Post report on a similar leak involving the preclearance decision in the Georgia voter i.d. case and this report on the exodus of career DOJ civil rights attorneys in the face of accusations that the department's decisions have become too politicized. Clearly, someone in DOJ who is leaking the documents to the newspaper believes political considerations are trumping sound analysis by competent career DOJ attorneys. These revelations should cause Congress, considering reauthorization of the preclearance provisions of the Voting Rights Act, to look closely at whether DOJ remains the appropriate body to make preclearance decisions.

I don't think these revelations are likely to affect the upcoming decision in the Supreme Court whether to hear the second set of appeals from the three-judge court in the Texas redistricting cases. On remand, the three judge court did not address the Voting Rights Act issues again and focused only on the partisan gerrymandering claims. Here I wrote that the most likely Supreme Court outcome at this point is a summary affirmance with one or more dissents.

"Board grants recount in mayoral race"

The Detroit Free-Press offers this report, which begins: "Faced with a Detroit election riddled with missing votes, computer glitches and allegations of vote tampering, the Wayne County Board of Canvassers agreed Thursday to recount the contentious race for mayor."

"Bush backs extension of Voting Rights Act"

A.P. offers this report. No word in the report on whether the President supports any changes to the preclearance criteria.

Voter ID Coming to Ohio?

Here. I assume civil rights groups are already preparing their complaints.

The Connecticut Campaign Finance Bill: Are Parts of It Unconstitutional?

The New York Times editorializes in its favor. You can find the text of the measure here. This is a long and complex bill that I have not had a chance to analyze. I have heard some complain that the limits on contributions to candidates by lobbyists and their families could be challenged (lower courts have split on the constitutionaliity of targeted campaign finance regulation bans) and that the public financing provisions could violate the rights of minor parties. Robbin Stewart is concerned about the constitutionality of some of the disclosure provisions. I think it is fair to expect some litigation over the constitutionality of this measure, but I don't have an opinion yet on how such litigation is likely to come out.

Effort Underway in Humboldt County, CA to Limit Most Corporate Contributions and Expenditures in Ballot Measure Campaigns

See here.

Redesigned Demos "Democracy Dispatches" Page Now Available

See here. This is a nice looking page and easy to follow for those interested in election reform.

Split in Illinois Appellate Courts on Fate of Ballot Initiative When Chinese Translation of Ballot Materials Faulty

Following up on this post, noting this Illinois appellate opinion holding an initiative unenforceable due to a faulty Chinese translation of the ballot materials, this Illinois appellate court opinion reaches the opposite conclusion. According to the latter court: "If every inconsistency or irregularity in ballot translation were challengeable and deemed sufficient to void an election, every election in which the Board attempted to aid those individuals not versed in English by translating the ballot into another language would be voided and the courts overwhelmed with election cases. Clearly, this is not the intent, nor goal, in providing bilingual translations. Moreover, only substantial, not perfect, compliance is required. To allow any and every inconsistency or irregularity in translation to void an election would run counter to the well-settled principle." Thanks to Mathias Delort for keeping me up to date on this issue.

Sen. Specter to Question Judge Alito on One Person, One Vote and Shaw v. Reno; What Other Election Law Questions Should Be Asked?

See this letter. I am obviously pleased that this issue is getting the Judiciary Committee's attention, though I think Sen. Specter's connection of one person, one vote with Shaw v. Reno is a bit of an odd way of getting at things.

If Senator Specter or others on the Judiciary Committee want to explore other election law issues in which a Justice Alito could be a decisive vote, here are some other questions to consider asking (even if the Judge will refuse to answer some of the questions as encompassing issues likely to come before the Supreme Court):

1. Do you believe that South Carolina v. Katzenbach was rightly decided, and do you think that the constitutionality of sections 2 and 5 of the Voting Rights Act have been called into question by City of Boerne v. Flores and its progeny?

2. Do you agree with the Supreme Court's recent 5-4 decision in McConnell v. FEC, upholding most of the provisions of the Bipartisan Campaign Reform Act (the "McCain-Feingold law")? More generally, do you agree with the kind of deference to legislative decisions on campaign finance regulation put forward by Justice Breyer in his recent book, Active Liberty?

3. Some have suggested that cases like Bush v. Gore suggest that the Supreme Court should exit from the political thicket. Do you agree with this sentiment? Should courts entertain challenges that particular districting plans constitute partisan gerrymanders?

4. Do you agree with the Supreme Court's opinion in Republican Party of Minnesota v. White? Does the First Amendment require treating judicial elections like all other elections?

5. What role do you believe federal courts should play in resolving disputed elections?

Will Some Blogs Lose Their Newly Gained "Press Exemption" By Constituting Political Committees?

Check out page 9 of this pdf, which contains both the final version of the Fired Up! Advisory Opinion issued by the FEC and a concurring opinion by Commissioners Thomas and MacDonald. For some criticism of the move in the reform community to focus on "political committee" status, see this post from Bob Bauer and this post by Adam Bonin.

Connecticut campaign finance regulation moves to governor's desk

See here, here, and here.