Regular Blogging to Resume Thursday

See you then.

"Counting Votes and Making Votes Count"

I'll be speaking at the Hammer Museum in Los Angeles on Tuesday, October 7 (right after the second debate) with California Secretary of State Debra Bowen, moderated by Ian Masters. Details here.

"Election Experts Release 'Ballot Accounting Checklist' for 2008 Election"

The Brennan Center has issued this press release.

"The Myth of 'Voter Fraud' Drives Systemic Efforts to Suppress the Vote"

Erin Ferns has written this lengthy post for the Project Vote "Voting Matters" blog.

"Voting Rights in the 2008 Election: How Do We Ensure Every Vote Counts?"

ACS will run this interesting program with a web feed on Oct. 7.

TRO Issued in One of the Federal Cases on the Ohio Five Day Registration/Absentee Vote Window; One Federal Court Accuses Another of Acting "Unseemly" and with a "Lack of Comity"

I have posted the judge's 22 page order here requiring the Madison County Board of Elections to follow Ohio Secretary of State Brunner in allowing those who register to vote in the next five days to also cast an absentee ballot. The ruling is a temporary restraining order, but for our purposes this is the dispositive ruling. It requires taking a look at, among other factors, the likelihood of success on the merits. On that point, the trial court concluded: "Candidly, the underlying merits of issues are not even close. With regard to the interpretationof Ohio law, Defendant Brunner obviously determined the issue correctly."

Perhaps of equal interest is the following that appears on page 3 of the opinion:

After this action was filed, a later-filed case was presented to the United States District Court for the Southern District of Ohio. Southern District of Ohio Case No. 2:08-cv-00913. A motion to transfer venue to this Court was made in that case, arguing that the first filed rule should apply but that Court denied the motion. Although this Court had already set this matter for hearing on Plaintiffs' motion for a temporary restraining order, the Southern District of Ohio Judge cancelled a previously scheduled hearing before that Court and moved the hearing earlier, apparently in an unseemly attempt to be able to rule first. That such lack of comity is unseemly understates.

Longtime blog readers may recall in 2004 when two federal district court judges barred Ohio Republicans from issuing challenges to up to 35,000 voters at the polls. The day before election day, the 6th Circuit, in a split ruling, overturned those orders. The case went to Justice Stevens of the U.S. Supreme Court as Circuit Justice, who refused to stay the 6th Circuit order. (More details on pages 996-997 of this paper).

For some early press coverage, see here and here.

UPDATE: The Ohio Supreme Court, on a 4-3 vote agrees with the Secretary's interpretation.

SECOND UPDATE: The second federal district court has ruled, abstaining on the 5 day window issue in light of the Ohio Supreme Court's ruling, but granting the TRO to require election observers during the early voting period. I hear that there may be appeals of both federal rulings to the Sixth Circuit. See here.

"WV voter fraud concentrated in Kanawha County"

AP offers this report.

"On GOP Plans and Denials to Challenge Foreclosed Voters"

Gerry Hebert has this post on the CLCblog.

"Voter registration effort criticized"

The Ventura County Star offers this report, which begins: "Charges that a Republican Party voter registration effort is illegally forcing voters to choose the GOP label were leveled by Democratic Party activists Friday, and police were called to shopping centers in Ventura and Oxnard to keep the peace, officials said."

"Paper ballots won't be the panacea Broward County hoped for"

Michael Mayo has written this column for the South Florida Sun Sentinel.

Local Missouri Prosecutors as Part of Obama "Truth Squad"

I found this video report quite odd. Does anyone know if these prosecutors are working in their official capacities here? UPDATE: Apparently Republicans are upset about this in Missouri.

"Count Every Vote: California's secretary of state says open-source software is needed to safeguard electronic voting systems."

See this piece in the MIT Technology Review.

"Kurita sues to get win restored"

The latest from Tennessee.

"AFTER HOLDING FINANCIAL ADVANTAGE IN PRIMARIES, OBAMA LIKELY TO ACHIEVE ONLY PARITY WITH MCCAIN IN GENERAL ELECTION"

The latest of the indispensable Campaign Finance Institute releases on presidential campaign spending is now available. With these data, I plan to update this draft.

"New Voices in Politics: Justice Marshall's Jurisprudence on Law and Politics"

Beth Garrett has posted this draft on SSRN (forthcoming, Howard Law Journal). Here is the abstract:

Justice Marshall's career reveals his commitment to the objective that all people, regardless of their race, ethnicity or economic class, should have an equal opportunity to participate in the political process. His view of participation emphasized not just its instrumental value, but also Marshall's belief that participation is intrinsically valuable to participants and the larger society. He saw the foremost constitutional principle as equality; and he viewed participation in politics as a related principle that "recognizes the moral worth of each individual, and in this way shows again that all persons are equal." The Justice also understood that entrenched interests within the parties and elsewhere would use every weapon to keep new voices from being heard and would resist expanded public involvement in the political process. Justice Marshall knew concretely and personally that without those new voices in politics and without that broad participation in elections and governance, lasting and profound change in a democracy is impossible. Because so much of Justice Marshall's legacy as a litigator and jurist lies in the realm of the fight for civil rights, scholars and biographers have usually dealt with these political process issues as they relate to the struggle in the courts and legislatures for equal rights, particularly for racial minorities. However, Marshall's jurisprudence includes several important opinions concerning political parties and campaign finance regulations that are not explicitly focused on race. This article focuses on those opinions. In Part I, I discuss the passages of Justice Marshall's opinions that reveal his view of the role of minor parties and other forces in ensuring that new perspectives and outsider views influence the political agenda. The key cases here are those describing the importance of minor parties in the American political process, but Marshall also sounds these themes in cases dealing with residency requirements in voting registration laws as well as in a dissent in a case involving felon disenfranchisement. Of course, new voices must have access to the political process to effect change, and Marshall's commitment to equality of opportunity to take part in politics can be seen in the cases to which I turn in Part II: the campaign finance cases. Austin v. Michigan Chamber of Commerce is his most significant campaign finance opinion, but his egalitarian approach shapes other opinions, including his concurrence in part and dissent in part in Buckley v. Valeo. Austin is best understood as vindicating the principle of equality of political opportunity even though, to maintain his majority, Marshall disguised egalitarian arguments in the garb of corruption. Finally, in Part III, I discuss aspects of Marshall's jurisprudential approach that demonstrate his awareness that entrenched players, particularly those in the legislature and at the helm of the major parties, will resist these new voices and seek to manipulate institutions to protect the status quo. He viewed the independent judiciary as a way to ensure that the political branches are not allowed to adopt laws and institutions that shut out those with dissenting perspectives. His distrust of some actions of the major parties was balanced, however, by an appreciation of the role they play in structuring political discourse and helping voters cast votes that reflect their priorities.

"Voting, Disputes Get Off to an Early Start in Ohio"

The Wall Street Journal offers this report.

"Re-Seeding the Housing Mess"

A Wall Street Journal editorial on the bailout and ACORN.

"Another chance at redistricting in California"

Nicholas Stephanopoulos has written this oped for the Los Angeles Times.

"Experts: Wis. suit affects minimal post-election"

AP offers this report.

"Live, from New York...."

Marc Ambinder wonders: "will Saturday Night Live mock McCain's patronizing attitude toward Obama? Or Obama's manifold agreements with McCain." I wouldn't count this out.

Pildes: The Bailout Bill and the Awkward Merger of Presidential and Independent Control

Here is a guest post from Rick Pildes:

A new issue about who holds effective power over the bailout has emerged in the recently-released "discussion draft" of the bailout bill. Congress is now proposing a structure in which actions of the Secretary of the Treasury can be vetoed by an entity the bill would create, the "executive committee" of the newly created Financial Stability Oversight Board. This committee will consist of the Chairs of the Fed. Reserve Board, the SEC, and the FDIC Board. According to Section 103 of the draft bill, this committee may "direct, limit, or prohibit" the activities of the Secretary... to the extent the Committee determines that such activities are not in accordance with the purposes of this Act." This is a new provision not in earlier versions, as far as I know.

Here's what's unusual about this structure. It reflects a merger, or blurring, of government power between executive and independent agencies in a way that I believe is unique. The Secretary of the Treasury is a political official who serves at the pleasure of the President. The troika of Chairs are, instead, heads of independent agencies: the President cannot remove them at his pleasure but only for certain specified "good cause" reasons (although the President has the power to determine who serves as the Chair of these entities). So this proposal subordinates one of the President's most essential cabinet members to the control of independent officials, that is, officials outside the control of the Executive Branch. It’s one thing for Congress to require consultation among a group like this, but this bill actually gives the troika the power to "direct, limit, or prohibit" actions of the Secretary.

The first thing to note is just how unusual this structure of power is. I'm not sure I've seen it in American government before, where such a broad swath of major policymaking is involved, but perhaps someone else knows of examples that don't come to my mind. Think about in similar contexts: suppose Congress were to say the Secretary of Defense's decisions in some area could be vetoed by a group of independent officials not located in the executive branch. At a minimum, this kind of blurring of executive and independent agencies is going to create a lot of legal confusion down the road. Most of federal law has separate regimes for independent agencies versus executive branch departments and agencies; now we have a hybrid actor making decisions. But those issues can be untangled down the road. More importantly, the structure takes a prime agent of the President, the Secretary of the Treasury, and now gives the Secretary two masters: the President and, with respect to these issues, the troika.

This unusual power-sharing arrangement generates constitutional questions that reflect concerns about effective structures of government whenever the lines of policymaking authority get blurred. I have no doubt Congress could give all these powers directly to the troika. Unitary executive branch purists would object to that, to be sure, but the Supreme Court long ago upheld the constitutionality of independent agencies like the Fed. and the SEC. So if Congress instead gives the initial decisionmaking power to the Secretary, subject to override by this troika, what's the big deal, one might ask. The concern, however, will be that Congress has now given the troika a source of enormous leverage over the Secretary of the Treasury -- hence the ability, potentially, to influence the Secretary's decisions on a whole range of issues. Accountability for the bailout is divided between the Secretary (and hence the President) and this troika. All are responsible to some extent. If the Secretary strongly believes a certain action is necessary, but a couple members of the troika resist, the Secretary might find it expedient to accept their influence over other issues, including unrelated ones. This fragments the Secretary's loyalties and incentives: no longer is he or she only responsible to the President.

The merger of executive and independent agencies in this proposal has arisen only in the most recent draft of the bailout. One can understand why Congress is drawn to a structure like this. Congress is concerned about putting all this power in the hands of the Secretary, who is a political actor, and on top of everything else, we have an election looming and hence no knowledge of whom the new Secretary will be, with what kind of philosophical orientation. Congress wants the benefit of a single actor able to make decisions, with relevant experience on the issues involved, but wants some kind of oversight check from more independent actors as well. It's also easy to see how Congress backed into this structure. Initially, this new Financial Stability Oversight Board was supposed to be just that: an oversight body. Now it has real legal power.

I have no desire to introduce obstacles to resolving the current crisis. I also have not digested the full bill, so perhaps the complete story will look a bit different. But this apparent new structure of policymaking is quite unusual, at the least, and it is important that its implications be thought through.

--Rick Pildes

"Well, I don't know whether Senator McCain is a model of debate prep today."

See here, as I predicted. Please email me other examples of people trying to excuse any debate performance by Sen. McCain (a debate which he's apparently already won before it starts) based upon his decision to go to D.C. to work on the bailout.

UPDATE: Ambinder: "McCain has spent a lot less time preparing for this debate than Obama owing to McCain's decision to suspend his campaign and return to Washington."

"Charity Floods Swing States With Anti-Islam DVD"

NPR offers this audio report.

"Ministers to Defy I.R.S. by Endorsing Candidates"

The NY Times offers this report.

"2 Ohio justices step down in cases challenging early-voting procedure"

AP offers this report. The docket for the case helpfully has pdfs of the relevant documents, including some amicus briefs. There's more analysis of the suit at Moritz. Moritz also has this analysis of the "check box" suit. I hope to write more about the Ohio litigation soon.

EAC Chair Rodriguez Sends Letter to Social Security Administration Re Shutdown

I have uploaded the letter here.

Appeal to 4th Circuit of "Real Truth Against Obama" Case

You can find the appellant's brief here. From a press release I received via email:

RTAO is an issue-advocacy 527 corporation formed to tell the American people the real truth about Senator Obama's public policy positions. Its first project is about Obama's radical pro-abortion views and voting record. RTAO does not expressly advocate the election or defeat of any candidate, but rather only does issue advocacy. The Supreme Court has stated that issue advocacy is constitutionally protected as it "conveys information and educates. An issue ad's impact on an election, if it exists at all, will come only after the voters hear the information and choose--uninvited by the ad--to factor it into their voting decisions." Wisconsin Right to Life, Inc. v. Federal Election Commission ("WRTL II"). Nonetheless, RTAO feared that if it would broadcast its issue ads on Obama's position on abortion, it would be punished by the FEC and DOJ for violating campaign finance laws.

RTAO filed suit on July 30 challenging FEC regulations that unconstitutionally restrict RTAO's ability to engage in issue advocacy. After the 2004 election, the FEC adopted an enforcement policy where it would deem 527 groups to be federal political action committees if they praised or criticized federal candidates on issues. Several groups, including the Swift Boat Veterans for Truth, were severely fined. RTAO alleged in its suit that the FEC's complex scheme on PAC status violated numerous Supreme Court decisions

"Ohio's Battle Over Early Voting"

This post appears at the Wall Street Journal's "Washington Wire."

"What Does It Mean To Suspend a Campaign?"

Slate offers this Explainer. If that's not enough on suspension, try this.

California Appellate Court Rules that Los Angeles' "Measure R" (Increasing Term Limits) Does Not Come Under Single Subject Rule

The Court of Appeal's opinion is here. This was a really easy case, as I noted back in September 2006, the argument that city council-authored ballot measures fell under the single subject rule just does not comport with a plain reading of the California Constitution.

"States, Territories, and the District Are Taking a Range of Important Steps to Manage Their Varied Voting System Environments"

GAO has issued this major report in response to a request by the Senate Rules Committee to address the following questions: "(1) what voting methods and systems are these entities using in federal elections and what changes are underway; (2) how do they certify or otherwise approve voting systems; (3) what other steps do they take to ensure the accuracy, reliability, and security of voting systems; (4) how do they identify, evaluate, and respond to voting system problems; and (5) how do they view federal voting system-related resources and services."

"Obama seeks to take down NRA ad"

Ben Smith has the details.

The New Electionline Weekly

Here.

Just Asking Dept.

Will the main effect of a decision by Sen. McCain to attend tomorrow's debate at the last minute be to lower expectations for his performance even more, on grounds he was too busy working on the bailout to prepare for the debate?

Anonymous "Election Lawyer" is Concerned that Justice Department Will Criminally Prosecute Republicans for Exercising First Amendment Rights in Election

See here. A snippet:

Walsh made it clear that the Criminal Section intends to use the civil rights statutes to criminally prosecute anyone they consider to be engaging in voter "intimidation" or "oppression." Now, that might sound like a reasonable idea until you realize that Walsh and Kappelhoff's definition of "intimidation" and "oppression" goes far beyond what you and I would imagine. Walsh stated that because we have an African-American presidential candidate, there would be voter suppression -- a baseless assumption that plays on left-wing stereotypes of America as a racist nation. Every single example of wrongdoing that Walsh and other presenters used in their presentations talked about Republicans: there was not a single example of any wrongdoing committed by any Democrats in the entire two-day conference.

One cited example of a "criminal" violation supposedly intended to "suppress" voting was sending mailers informing voters that you must be a citizen to vote, a requirement of state and federal law. One of the deputy chiefs, Mark Blumberg, told FBI agents and federal prosecutors that the individuals responsible for such a brochure should be brought before a federal grand jury to ask them if they belong to any "anti-immigrant" groups. Not surprisingly, this deputy chief also did a detail with Senator Kennedy.

"Court Clears Voting Rights Act Bailout for Virginia County"

Gerry strikes again.

"Reading Between the Extremes of Obama Campaign v. Michigan GOP"

ProPublica offers this extended report.

"Palin gets more time to detail personal finance"

AP offers this report.

New Lawsuit Filed Over Ohio 5 Day Registration/Absentee Window

I've already mentioned the writ of mandamus filed by Republicans in the Ohio state Supreme Court seeking to bar Ohio election officials from being able to allow people to register to vote and file absentee ballots at the same time during a five day overlap period at the end of September.

Now comes word that the ACLU in Ohio has filed suit in federal court "challenging an Ohio county that is denying absentee ballots to newly registered voters in violation of directives issued by Secretary of State Jennifer Brunner." You can find the litigation documents here.

As I understand it, the state court suit raises state issues (though federal issues may come up as part of the Secretary of State's defense of her position). The federal suit raises federal claims, and features different parties, so the state's Supreme Court's decision would not preclude a contrary federal court decision.

More on this to come. UPDATE: Most of the same groups bringing the federal suit have filed this amicus brief in the state mandamus action.

Pastors, Elections, the Tax Man, and the Constitution

The L.A. Times offers Pastors plan to defy IRS ban on political speech. And Lloyd Mayer has posted The Pulpit, Politics, RFRA, and Institutional Free Exercise on SSRN. Here is the abstract:

More than fifty years ago, Congress enacted with little deliberation a prohibition against political campaign intervention for all charities, including churches and other houses of worship. For many years the prohibition lay mostly dormant, invoked only rarely by the government and never against a house of worship for statements made from the pulpit. That period of relative peace is now over, however, as the government has begun a systematic enforcement effort and both religious liberty groups and houses of worship have reacted with increasing defiance. Yet predicating the ultimate result of this conflict is complicated by the shifting sands of free exercise of religion law, including still unsettled issues arising out of the Supreme Court's landmark Employment Division v. Smith decision applying the First Amendment and Congress' enactment of the Religious Freedom Restoration Act (RFRA) in response.

This article navigates that legal landscape, identifying and attempting to answer the open questions that courts may need to resolve to address this almost inevitable conflict. Those questions include the scope of the various exceptions to the rule announced in Smith and what exactly it is that the Religious Freedom Restoration Act restored. This exploration reveals that the First Amendment as currently interpreted by the federal courts is unlikely to prevent the government from applying the prohibition to sermons, but that churches and other houses of worship have a strong argument that RFRA does block the prohibition in the unique context of in-person, in-service sermons. This exploration also uncovers another possible line of argument for houses of worship - that, the First Amendment and the RFRA protect "institutional free exercise" as well as individual free exercise. Building on the existing but still somewhat incoherent church autonomy doctrine, an institutional free exercise approach would protect all reeligious communications between the leaders of a house of worship and its members from the reach of the prohibition under both the First Amendment and RFRA.

"Republicans, ACORN feud over suspicious voter cards"

The Miami Herald offers this report. For more on the surge in voter registrations in Florida, see here.

"As Homes Are Lost, Fears That Votes Will Be, Too"

The New York Times offers this report. UPDATE: Bob Bauer picks up on a non-denial of the use of foreclosure lists by an Ohio Republican official. Second update: The Times article now includes this addendum: "[After this article was published, Mr. Bennett sent an e-mail message adding that the Ohio Republican Party condemns 'any effort to challenge the eligibility of voters based on home foreclosures.']"

"DOJ Says It is Monitoring Michigan GOP"

The Michigan Messenger offers this report.

"ELECTION 2008: Wisconsin Judge Rules AG Can Sue State's Election Board"

American Lawyer offers this report.

"Voter groups to hover over county Nov. 4"

The Palm Beach Post offers this report.

"Confusing Voter Registration Laws Could Affect Presidential Election; Register at parents' home? At school? Students get conflicting advice"

U.S. News offers this report.

MIT Conference on Electoral College Reform, Oct. 17

Details here.

"Voter Registration Shut Down?"

The blog of the Brennan Center offers this post, which begins: "A recent alert by the Social Security Administration announces that the agency plans to shut down its databases for maintenance from October 11 through October 13. While this might not sound like an election issue, it turns out that this could significantly impede registration of first-time voters as well as the re-registration of eligible citizens." See also this letter from Sen. Feinstein.

"Newspapers in Swing States Are Delivering Anti-Islam DVDs to Voters"

The campaign finance angle to this:

Gregory Ross, the spokesman for the Clarion group, which produced and is distributing the DVD, told the Harrisburg Patriot-News that the movie was being delivered to 28 million homes throughout the month of September and that the intention was not to sway voters to either candidate.

The Clarion Fund is a shadowy non-profit group created to "educate Americans about issues of national security," according to its website. The staff and organizational information of the group is not listed on the website.

Clarion Fund was founded by the writer and executive produce of Obsession, Israeli-Canadian Raphael Shore. The group also runs the website Radicalislam.org -- an educational site which implores its readers to "take action against radical Islam" by exploring its resources under four headings: "fueling terror, "Sharia law," vote 2008, and "radical Islam overview."

Because of Clarion Fund's non-profit, tax-exempt status, it is not permitted to sway voters in a partisan manner. But Radicalislam.org reportedly was, until it was recently pointed out in the media, carrying an article that explicitly endorsed Sen. John McCain.

Sen. McCain Wants Debate Postponed

See here. This looks like a risky move to me. UPDATE: I weigh in with a bunch of others on whether this is a smart move by Sen. McCain or not over at Politico's Arena.

"Campaign Finance Watchdog Group or Campaign Organization?"

I missed this interesting story at CQ Politics (via Center for Competitive Politics blog).

More on Electoral College Tie

Following up on this post, my colleague Karl Manheim sends along these thoughts:

There are 3 potential problems with the Washington Times' nightmare scenario following a 269-269 tie in the electoral vote.

1. In the event no candidate has a majority of electoral votes, the President is selected by the House on Jan. 6 (3 USC s 15) , but with each state getting a single vote (Art. II, s 1, P 3; and 12th Amd) - "in choosing the president, the votes shall be taken by states, the representation from each state having one vote"). Even with a strongly Democratic house, will they control 26 state delegations?

2. The Vice President is selected by the new Senate, which takes office on Jan. 3 (20th Amd). Unlikely to be a tie in the Senate then.

3. Nancy Pelosi may not be next in line to act as President (even assuming she is reelected). While 3 USC s 19 does list the Speaker of the House as next in line after the VP, the succession statute applies to all vacancies in the office of President. At least to the extent it includes death or disability, only an "officer of the Untied States" is eligible to serve (Art. II, s 1, P 6), and members of Congress are not "officers" (see Art. II, s 4 - describing impeachment of all civil officers (members of congress cannot be impeached, hence not "officers of the United States")). Although the 20th Amendment broadens the category of who can serve "if a President shall not have been chosen before the time fixed for the beginning of his term" (20th Amd. s 3) to include any "person" (not just officers), its inclusion in a statute that is otherwise unconstitutional may be problematic.

Profile of Sen. Obama as Law School Professor

See here.

"Democrats sue to make Rossi call himself 'Republican' instead of 'GOP'"

See here. It is a very interesting argument given that this "nonpartisan primary" was recently upheld against facial challenge by the Supreme Court.

"Barr loses bid to keep Obama, McCain off Texas ballot"

The Houston Chronicle offers this report.

"GOP criticizes advisory of Ohio elections chief"

AP offers this report, which begins: "Republicans attacked Ohio's top elections official Tuesday after the Democrat told counties they aren't required to allow third-party election observers at in-person absentee ballot drop-off sites."

'"Federal, State and Local Efforts to Prepare for the 2008 General Election"

The Committee on House Administration, Subcommittee on Elections and the Committee on Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties Joint Oversight Hearing on "Federal, State and Local Efforts to Prepare for the 2008 General Election" will be on the 24th at 10 am. Live webcast here.You can find Jocelyn Benson's prepared testimony on the Michigan foreclosure voter controversy here.

"Wisconsin Republican Party chairman says he had contacts with Van Hollen's top aide"

The Wisconsin State Journal offers this report (via TPM).

"Feds Won't Send Prosecutors to the Polls"

AP offers this report.

"McCain v. Obama, a U.S. Supreme Court hypothetical (one hopes)"

This event on Oct. 20 is D.C. looks fabulous and I'm sorry I won't be on the east coast around that time to attend.

"Palm Beach Ballots Down for the Count"

This post appears at The Trail blog of the Washington Post.

"Judge rules for injunction on Measure T"

The Eureka Reporter notes that the trial court granted a preliminary injunction barring enforcement of the provision barring non-local corporations from contributing or spending money in local elections. The court's order is here.

"269 tie: An electoral college 'doomsday'"

The Washington Times offers this report.

Federalist Society Event in DC

See here. Where's Thor Hearne?

"Fight Heats Up in Ohio Over Voting Procedures"

This post appear's at the Wall Street Journal's "Washington Wire."

"Nader: Drawing Votes--From McCain"

This post appears at The Caucus blog of the NY Times.

In Conference Call with Reporters, Rudman and Danforth Try to Tie Obama to ACORN and Raise Claim of Illegal "Diluting" of Legal Votes

Don't miss this report in The Guardian. So far, I'd say that this doesn't look like the kind of group I would have hoped, to move the conversation beyond the usual Republican voter fraud/Democratic voter suppression talking points.

"It Will Always Be 1965...to the Voting Rights Activists"

Edward Blum has written this piece for the Weekly Standard.

EAC Commissioner Confirmation Hearing Thursday

Back in July, President Bush nominated Gineen Bresso Beach to fill a Republican seat on the U.S. Election Assistance Commission, opened when EAC Commissioner Caroline Hunter went over to the FEC. I follow election law pretty closely, but I did not hear anything about this. The Center for Competitive Politics blog noted the nomination a couple of weeks ago.

In any case, the hearing before the Senate Rules Committee is now set for September 25 (which I believe is a Thursday, though this notice says Wednesday).

" Panel of Election Officials to Discuss Voting System Integrity for November Elections"

This interesting event will take place at UT Austin on September 29.

"Acorn: Steps in place to prevent fraud"

The Herald-Sun (North Carolina) offers this report (free registration required).

"Appeals Court Gives FEC, DOJ Deadline To Answer Anti-Obama Group's Challenge"

BNA Money & Politics Report offers this report ($).

Does Chesterfield County, Va Need Federal Supervision on Election Day?

Gerry Hebert says yes; the county registrar says no.

"Voting system remains untested"

The Cleveland Plain Dealer offers this report, which begins: "Only six weeks from the presidential election, Cuyahoga County can't guarantee its new voting system will work because the machines haven't been fully tested." I've said it many times during the last eitght years. Rolling out a new voting system for the presidential election is like debuting your new play straight on Broadway.

BCRA's "Stand By Your Ad" Provision Gets the Saturday Night Live Treatment

See here. Apparently Al Franken inspired this bit.

"Obama Led Opponent in Spending in August"

The NY Times offers this report (but I suspect this one will get more attention from the Obama campaign).

More on the Voter Fraud Controversy in Wisconsin

See here and here. UPDATE: More from NPR.

"Battle brewing in Ohio over voting-record discrepancies"

The Los Angeles Times offers this report.

"A third of electorate could vote before Nov. 4"

AP offers this report.

"2 percent of Florida's vote can spark a battle"

The St. Petersburg Times offers this report, which begins:

Four little words are generating a lot of noise in Florida. It's another sign of how high the stakes are this election year.

The words: "No match, no vote."

"McCain's Camp Tests Fund-Raising Limits"

The New York Times offers this front-page report.

"Republicans slam group suspected of voter fraud"

AP offers this report from North Carolina.

"Online help for judges in election lawsuits"

AP offers this report. More information on the program, of which I was part (along with Ned Foley, Avi Rubin and Dave Douglas) here. As for the statistics cited in the article, you can find updated statistics here.

A Thought on the 60-Day BCRA Window

Back in around 2000, when McCain-Feingold was being debated, I recall that both Richard Briffault and I expressed the view that the 60 day window imposed in BCRA, which prevents corporations and unions from spending their general treasury funds on "electioneering communications" within 60 days of the general election, was too long. In election years, we both argued, important public policy issues (what I termed "genuine issue advocacy") about which corporations and unions might want to run ads could occur in September, with congress in session. This week's financial meltdown is an excellent case in point. Corporations and unions might want to run t.v. or radio ads on the financial bailout, unconnected to the election, but urging Obama or McCain to do something in particular about the crisis. To do so now, they'll have to argue it falls under the WRTL exemption.

But perhaps Congress should have enacted a shorter window, as Richard and I both had advocated.

More on the Michigan Voter Fraud Controversy

Following up on this post, and as the underlying dispute breaks out beyond the election law listserv), I wanted to comment a bit on the "46 dead voters" point in the McComb County Republican party press release.

Dan Lowenstein, writing on the election law listserv (and quoted with permission), believes that my only problem with Trevor was his failing to distance himself from the hyperbole contained in the letter and not with the "factual issue" involving the 46 dead voters allegedly voting in Michigan elections.

I also take issue with the factual claim. I would not be surprised if real certified death certificates were turned in to the Michigan Supreme Court. But that hardly proves that voter fraud was involved. Michael McDonald has pointed out that the most plausible explanation for most claims of "dead people voting" is election administration incompetence, most likely someone signing on the wrong line in the poll book. Here is a nice story from Connecticut where over 100 allegations of dead voters were made, and it turned out that not a single one was proven; but there was plenty of election administration incompetence. And we shouldn't forget the highly policitized nature of the Michigan Supreme Court.

"Democracy 21 Calls on Attorney General to Remove Director of Election Crimes Branch from any Decision Making Role Regarding 527 Groups, After Director Makes Comments that Appear to Immunize 527 Groups from Justice Department Investigation or Prosecution"

This press release comes from Democracy 21.

Federal Court Challenge to Nevada Initiative Process Filed

See here.

Lots of Interesting Stuff in this Week's Electionline Weekly

Check It Out.

"Nader, Barr muscle onto the Nov. ballots"

The Politico offers this report.

Bauer v. Potter on Voter Fraud Allegations in Michigan

Bob Bauer's latest post sets forth an issue that's been discussed on the election law listserv.

I won't restate the debate here, but let me say that after reading Trevor's post and Bob's response, I stand by my claim that this charge is unsubstantiated, and I am very troubled that Trevor has still said nothing to distance himself from the McComb County Chair's statement about "the kind of ballot integrity Democrats favor in Michigan."

Lest anyone think I simply agree with whatever Bob says (and regular readers of this blog would know that I do not), I am ever more convinced that the primary purpose of Bob's suit against the Republicans in Michigan is for p.r. purposes. It reinforces the voter suppression meme of the Democrats. To be clear, there is some genuine voter suppression activity (which I have chronicled). But I believe that claims of voter suppression are also brought out by Democrats for political purposes. I also think, as I've chronicled ad nauseum on this blog, that Republicans use unsubstantiated claims of voter fraud all the time for political purposes.

"Law dean writes of regret over errors"

The Times Picayune offers this report, which begins: "Tulane Law School'' dean has apologized to the Louisiana Supreme Court for what he called 'numerous errors' underlying a recent Tulane Law Review article about a study that showed a high correlation between lawyer and litigant campaign contributions to justices and decisions favoring the donors." Howard Bashman has more information.

"Barr Loses Bid to Halt Mailing of Ballots"

The latest from Texas.

"Early Voting for President Starts Today"

Time offers this report. Here's the WSJ's survey of possible election snafus.

"Watch Out Donald McGahn II!!!"

That's the headline at MSNBC's First Read.

"Miss. governor will move Senate race up on ballot"

AP offers this report. The decision is here (via Daily Kos).

"Barr Sues Texas for Excusing Late Filing by Republican and Democratic Presidential Candidates"

Ballot Access News has the details.

"Advancement Project and ACLU Sue Michigan Secretary of State Over Unlawful Voter Purging"

See this press release. You can find more documents related to the lawsuit here.

Another Virginia County Bails Out from Section 5 Coverage

Gerry the Bailout King does another one.

Center for Competitive Politics v. NRCC

See here.

"FEC Tackles Rule on Bundling of Campaign Donations"

CQ Politics offers this report.

"Rep. Don Young Wins Alaska House Primary"

AP reports that a request for a recount is possible.

"Democrats, Florida elections officials criticize GOP mailing"

The St. Petersburg Times offers this interesting report.

Interesting Data on Presidential TV Advertising from the Wisconsin Advertising Project and CMAG

See here.

"House Passes Veteran Voter Drive Bill"

AlterNet offers this report.

"Nonpartisan task force will investigate voter fraud allegations"

The Milwaukee Journal-Sentinel offers this report.

"Obama Campaign Sues in Michigan Over Alleged Voter Fraud"

The American Lawyer offers this report. This is a very poorly written headline, given the story. The concern is over voter suppression, not voter fraud.

"2 voters sue Ohio elections chief"

The Cleveland Plain Dealer offers this report.

"High Turnout, New Procedures May Mean an Election Day Mess"

The Washington Post offers this front-page report.

"GOP Money Power Takes On Obama Fundraising"

NPR offers this report.

Bauer on Whether Democratic Claims of Vote Suppression are Equivalent to Republican Claims of Voter Fraud

Bob Bauer offers some very interesting thoughts. I hope to respond in the next few days, when I'm not so snowed under with other obligations.

"Democrats Challenge Van Hollen's Voter Registration Lawsuit"

AP offers this report from Wisconsin.

"Officials Challenge Senate Race Ballot"

The Jackson Clarion Ledger offers this report.

"McCain Able to Skirt Limits of Federal Financing"

The Washington Post offers this important report, which echoes a point I made a week ago. Stop thinking of the money race as Obama v. McCain. Start thinking of it as Obama + DNC v. McCain + RNC (with state parties coming in on both sides as well). Thinking of it that way, Obama's money advantage evaporates.

(And we should stop focusing on the $400 million Obama number. Much of that money is gone---spent on the primary and on early general election action. Much more important is Obama's current $77 million cash on hand going into September, and more money rolling in.)

"Democrats Sue Michigan G.O.P. on Voter Issue"

The NY Times offers this report on its "Caucus" blog about this complaint filed by the Obama campaign and the DNC. More in the Wall Street Journal.

Given that the head of the McComb County Republican Party not only denied he was going to use the foreclosure lists for vote caging purposes but has now threatened to sue the newspaper which printed the original story for libel, what explains the lawsuit?

Some blog readers may know that I also teach Remedies, and I was just explaining to my students last week that you can't get an injunction against a defendant unless you can prove "propensity," that the defendant is likely to engage in the action sought to be enjoined. So this comes down to one of two things: (1) the Democrats don't believe the denials of the county Republicans, and so even if they can't get an injunction because they can't prove propensity, they can at least get party officials to come to court and swear they are not going to engage in the conduct. (2) This is great p.r. for Democrats. Just as Republicans bring up (often unsubstantiated) charges of voter fraud close to election day, Democrats do the same with voter suppression. It helps motivate the Democratic base to argue that Republicans are trying to disenfranchise voters---especially here, middle class voters who are down on their luck and stuck in the current financial mess with a foreclosure problem.

Whether it is more (1) than (2), I don't know.

"GOP-targeted group: 'Your complaint is frivolous'"

The Miami Herald follows up.

"Democrats Reject Kurita Win"

This interesting piece appears in The Tennessean.

"Are They Really Safe?"

Reid Cox has written this interesting post on the Center for Competitive Politics blog. He asks: "did the director of DOJ's election crimes branch, Craig Donsanto, really take independent groups off the criminal hook, or just their donors?"

Programming Note

I'm speaking about election administration and the courts at the Appellate Judicial Attorneys Institute in Sacramento today (with Chuck Bell and Lance Olson). Posts will appear again later tonight or tomorrow morning.

Bauer on Hasen on Presidential Primary Financing

Bob Bauer offers these thoughts on the new draft I have posted to SSRN.

DOJ Official Says Agency Won't Go After Contributors to 527s Who Are Clearly Breaking the Law...

and that "the legal standard established by the WRTL opinion was not clear enough for a criminal prosecution." See this must-read BNA Money & Politics Report.

"Judge: Barr will be on Pa.'s presidential ballot"

AP offers this report. No word yet if the Republicans will appeal. Could Barr's presence make a difference for the Pa. outcome? Yes, if the race is as close as this new poll suggests.

"Could Obama and Barbra break a record in Beverly Hills?"

See this post at an LA Times blog. Meanwhile, TPM reports on efforts of outside Democratic groups to potentially help Sen. Obama.

"Helping vets vote should be law, senator says"

Marine Corps. Times offers this report.

"Interest Groups Step Up Efforts in a Tight Race"

The NY Times offers this report.

"McCain-Palin 2008 Launches 'Honest and Open Election Committee'"; Will It Make A Difference in the Election Administration Wars?

The McCain campaign has issued this press release, which begins:

The McCain-Palin 2008 campaign today announced the formation of the Honest and Open Election Committee, with a mission to ensure that every qualified citizen has the opportunity to vote in a fair and transparent manner. The committee will work with state and local election officials to anticipate, and where possible resolve in advance, problems likely to arise on Election Day.

The advisory committee will be co-chaired by former United States Senators John C. Danforth and Warren B. Rudman. The committee also includes current and former members of Congress and former state secretaries of state, election officials, and state attorneys general, along with prominent academic experts in election law. The diverse composition of the committee reflects the McCain-Palin campaign's desire to put partisan politics aside in the hope of seeing a fair and transparent election in November....

The Honest and Open Election Committee requested a dialogue between the McCain-Palin campaign and both the Democratic National Committee and the Obama-Biden campaign in letters sent today.

You can find out more about the efforts here. (Note that the first goal of the group is one Democrats would endorse; the second goal, "No qualified voter should have his or her vote canceled or diluted by illegal votes," echoes Republican (but not Democratic) calls for voter identification laws and a concern (in my view, mostly unfounded) about voter fraud.)

My initial reaction to this is that in spirit this is a step in the right direction, but I don't expect it to stop one bit aggressive efforts to challenge election administration laws in the battleground states.

To explain, while I don't know everyone on the impressive list of members of the committee, those I know personally (along with Trevor Potter, Sen. McCain's general counsel), are people of the highest integrity.

But while the McCain campaign can take the high road and legitimately play by the rules, it can watch as state and local Republican committees fight the election administration wars. For example, as I've chronicled, the Republican Party in Ohio is seeking to shut down an effort to allow first time voters to vote absentee at the same time they register to vote during a five day period at the end of this month, despite the fact that the law (passed by the Republican legislature) allows this procedure. And Trevor Potter, in an effort to refute claims that a local party in Michigan was going to target for vote challenges voters whose homes had been foreclosed, forwarded to the election law listserv a statement from the McComb county chairman. The statement not only denied such an effort would take place, but it included the following unsubstantiated charge: "in 2004, at least 46 long-deceased voters managed to rise from their graves and vote in heavy Democrat-leaning precincts. That's the kind of ballot integrity Democrats favor in Michigan." Not a word from Trevor distancing himself from this language.

This is not to say that only Republicans have played the election administration game this year. I've also criticized Ohio Dem. Secretary of State. Brunner for how she plans to handle certain absentee ballots sent in by McCain supporters.

So unless the McCain campaign and the Obama campaign are willing to make a concerted effort to rein in state and local party election administration efforts, as well as the actions of partisan election officials in battleground states, I'm dubious this effort will make any difference in the election administration wars. As for the possibility of bipartisan cooperation Bob Bauer's latest posting shows considerable distance between the parties regarding who is responsible for the election administration wars.

NRCC Files Complaint With FEC Against Group, Alleging It Must Register as Political Committee

See here.

"Voting in 2008: 10 Swing States"

I just recevied a press release about this new report: "As election officials brace for record-breaking voter turnout on Election Day, a close examination of voting preparedness in 10 swing states shows that significant problems in the basic functions of the American election administration system persist, and in a few cases have worsened over the last few years, a new report by Common Cause and The Century Foundation shows."

"Liberal 527 Groups Target McCain With Ads"

NPR offers this audio report.

"More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates"

I have posted this draft on SSRN. A revised version of this will appear eventually in a book coming out of the UC Berkeley IGS conference last spring on the nominations process. The data in here are currently only through July, and I plan to do a revision once the final primary money numbers from 2008 are available. But I think those interested in the role of money in the presidential primary season will find some of the charts and data here pretty interesting. Here is the abstract:

Financing a presidential party nomination campaign has been a complicated affair for some time: candidates face contribution limits, source limitations, extensive reporting requirements, and, for those candidates opting into the voluntary public financing program, a strict spending limit. Moreover, the campaign financing system is not only complex but dynamic. The system recently has undergone two fundamental changes: (1) the voluntary public financing system, with its accompanying strict spending limit, is no longer an option for serious presidential candidates, who would be grossly outspent by nonparticipating rivals; and (2), the campaigns have come to rely ever more upon campaign finance bundlers, who collect maximum contributions (currently set at $2,300) from friends and associates, and upon "micro-donors," who give less than $200 in the aggregate to a primary campaign. These changes arose because of the changing legal rules governing money in presidential elections and a dramatic lowering of the costs of campaigning facilitated by the Internet. They may alter both the nature of presidential campaigns as well as the types of candidates who are viable to become general election candidates.

This paper has three parts. First, it describes the two recently-emerging fundamental changes in the campaign financing system for presidential primary candidates. Second, it explains why these changes have emerged now. Finally, it evaluates whether these changes are likely to be positive or negative from the standpoint of political equality and in terms of the quality and type of presidential candidates who win their parties' nominations

"The Power of of Political Misinformation"

See this very interesting column by Shankar Vendantam in the Washington Post.

Move von Spakovsky on Absentee Ballot Fraud

See here.

"Hood Takes Gloves Off Over Barbour Ballot Scheme"

The latest from Mississippi.

"Ohio Secretary of State Prevents Vote Caging"

The Politico offers this report.

"Critics: 'No Match, No Vote' Law Could Keep Voters From Polls"

The Ledger (Fl.) offers this report.

"States Restore Voting Rights for Ex-Convicts"

The New York Times offers this report.

"Va. Orders 200,000 Additional Voter Registration Forms"

The Washington Post offers this report.

AIP Gearing Up for More Anti-Obama Ads

This article appears in today's Washington Post. The final paragraph states: "American Issues Project is organized as a qualified 501(c)4 under Internal Revenue Service guidelines. As such an entity, AIP must use 60 percent of all its funding to make issues-based appeals but can use the remaining 40 percent to directly advocate for or against the election of a candidate. Any money spent for express advocacy must be reported through the Federal Election Commission, meaning that donors to the group will eventually have their identities revealed."

Whether or not's that's true as a matter of tax law (and whether there are other tax law issues with AIP), the fact remains that there are serious campaign finance questions raised by AIP's activities. First, if the group has a "major purpose" of influencing the outcome of federal elections (and there's no evidence it has had any purpose other than influencing the presidential campaign), then the group should be treated by federal camapign finance law as a political committee. Among other things, political committee status means the group would be violating the law if it took more than $5,000 from individuals. Here, Mr. Simmons has already given almost $3 million to the group. Second, there's some good reason to believe that large donors to the group such as Mr. Simmons are violating the aggregate individual $108,200 campaign contribution limit for federal elections. (There may be some constitutional arguments against these limits, but I have not heard them yet raised by Mr. Simmons or AIP.)

"Bad voter applications found"

The Detroit Free Press offers this report, which begins: "Several municipal clerks across the state are reporting fraudulent and duplicate voter registration applications, most of them from a nationwide community activist group working to help low- and moderate-income families. The majority of the problem applications are coming from the group ACORN, Association of Community Organizations for Reform Now, which has a large voter registration program among its many social service programs. ACORN's Michigan branch, based in Detroit, has enrolled 200,000 voters statewide in recent months, mostly with the use of paid, part-time employees."

"In August, Obama Raised $66 Million"

The New York Times offers this report. While Obama's fundraising breaks a record, the DNC's fundraising was much more anemic, and as I've argued, the important comparison is Obama + DNC versus McCain + RNC.

And in Election Adminstration Controversies from Wisconsin....

The Wisconsin State Journal offers McCain's mailer creates controversy.

The Milwaukee Journal-Sentinel offers Observers fear Van Hollen's election lawsuit will cause problems.

"Democratic Party committee throws out state senator's victory"

AP offers this interesting story from Tennessee.

Please, Please, Sens. Obama and McCain---One of You Make it a Blow Out in Florida

The South Florida Sun Sentinel offers Election problems raise questions about November vote in Palm Beach County.

"Obama's Fundraising Machine Still Rolling as Campaign Stays Coy"

Bloomberg offers this must-read report.

Dusting Off the Explainer

A few weeks ago, I linked to this Slate Explainer on what the parties would have to do to replace a presidential or vice presidential candidate on the ballot. The occasion there was my speculation (now quite unlikely) that Sen. McCain might drop Gov. Palin from the ticket.

I started thinking about the Explainer this morning when I read this Los Angeles Times article on Sen. Biden releasing 10 years of his tax records. The article concludes by noting: "Biden, who underwent brain surgery for a life-threatening aneurysm in 1988, has yet to release his medical records."

Andrew Sullivan has been beating this drum for some time, and Ben Smith got assurances on Sept. 4 that they were coming "very soon."

Well it certainly didn't take the campaign long to release the tax returns, once it became clear that Palin's tax returns might present an issue for the Democrats. The delay in releasing those health records makes me wonder if there is something in there that is worrisome.

Ohio Election Administration Update

Yesterday I criticized Sec. Brunner for her position on how she intended to treat certain absentee ballots submitted without an unnecessary box being checked. Today comes word that the Secretary has taken some commendable steps toward not disenfranchising these voters. Whether this can all be done in time to avoid disenfranchisement, I don't know.

Meanwhile, Moritz has posted the writ of mandamus in the five day window suit I blogged about yesterday. So far, I haven't heard from anyone answering my question about the Republican position.

"In Palm Beach County it goes from missing ballots to too many ballots"

The South Florida Sun Sentinel offers this report.

More on Political Cybersquatting: No Buyers....

See here.

The Election Administration Wars Continue in Ohio

Ohio Republicans have now sued over the five day window (which I discussed here) for one stop registration and absentee voting. I'll need to look at the statutes to have a firmer grasp of the legal issues, but I have this initial question perhaps a reader can help me with: under the Republican interpretation of the Ohio statutory scheme, would all votes mailed in by absentee voters in fewer than 31 days after the voter has registered be declared invalid?

"Judge Rules Against Mississippi GOP, Orders Special Senate Race Moved Up on Ballot"

CQ offers this report. Readers should recall that the Mississippi Supreme Court, where this case is being appealed, already engaged in some very creative statutory interpretation to push this special Senate election onto the general election ballot.

New ACLU Lawsuit Regarding Felon Disenfranchisement in Mississippi

You can find details here.

"Voter Registration for Wounded Warriors: S. 3308, the 'Veterans Voter Support Act.'"

This hearing will take place on Monday before the Senate Rules Committee.

"GOP 527 Must Show Us The Money"

Josh Gerstein blogs that "A new Republican-run 527 group planning advertising that could bolster the presidential campaign of Senator McCain of Arizona and undercut that of Senator Obama of Illinois, Leadership for America's Future, plans to disclose its donors publicly, contrary to initial indications."

"'Jim Crawford' Republicans; The GOP is working to keep eligible African-Americans from voting in several states"

Jonathan Alter has written this Newsweek column. And if we are 53 days before the presidential election, it must be time for John Fund to rev up his mostly unsubstantiated and exaggerated claims of voter fraud again.

"Editorial: Partisanship at work?"

The Milwaukee Journal-Sentinel offers this editorial, which begins: "There is a strong whiff of partisan politics from state Attorney General J.B. Van Hollen’s lawsuit on the Wisconsin's voter list."

"Foreclosures won't hinder voters; Macomb GOP chief denies plan to challenge votes in November"

The Detroit News offers this report.

Federal District Court Denies Preliminary Injunction in "Real Truth About Obama" Case

See this story in the Richmond Times-Dispatch. A few readers have sent me the judge's two page order, which concludes: "After hearing the arguments presented by all parties, this Court finds that Plaintiff is unlikely to succeed on the merits of the claims of unconstitutionality of the challenged provisions. Further, this Court has considered the irreparable harm element and finds that in balancing the harms of each party, the harm to the Defendants will be greater than the
harm to the Plaintiff. Lastly, this Court finds that a grant of these injunctions would negatively impact the public. Because Plaintiff fails to demonstrate a likelihood of success on the merits, an irreparable harm greater than that of Defendants, and that public policy would be served by granting these injunctions, Plaintiff has failed to meet its burden.
Accordingly, this Court DENIES both Motions for Preliminary Injunction." The judge promises a full memorandum to follow. According to this BNA report ($), Jim Bopp says the losing party is "seriously considering appeal."

"Voter Registrations Could Face Legal Challenges"

NPR offers this audio report.

"Ballot snafu endangers votes"

The Cincinnati Enquirer offers this report, which begins:

About one-third of the absentee ballot applications received at the Hamilton County Board of Elections have been ruled invalid because Republican Sen. John McCain's presidential campaign printed a version of the form with an extra, unneeded box on it.

In a narrow interpretation of Ohio law, Democratic Secretary of State Jennifer Brunner says many of the McCain forms have not been completed properly. If the box stating the person is an eligible elector -- or qualified voter – is not checked, Brunner said, the application is no good.

Did ABC News Bury the Lede?

Before Part 1 of the the Gibson-Palin interview aired, ABC News teased it by making it about war against Russia. Ben Smith, however, correctly notes that in this respect she was stating the obligation of mutual defense of NATO members.

It seems to me the lede should have been something about Gov. Palin's lack of familiarity with something that's been talked about for years in foreign policy circles: the Bush Doctrine. Marc Ambinder calls the exchange Palin's "deer in the headlights" moment. I haven't seen the video yet (UPDATE: it is here), but here's the relevant portion of the transcript:

GIBSON: Do you agree with the Bush doctrine?
PALIN: In what respect, Charlie?
GIBSON: The Bush -- well, what do you -- what do you interpret it to be?
PALIN: His world view.
GIBSON: No, the Bush doctrine, enunciated September 2002, before the Iraq war.
PALIN: I believe that what President Bush has attempted to do is rid this world of Islamic extremism, terrorists who are hell bent on destroying our nation. There have been blunders along the way, though. There have been mistakes made. And with new leadership, and that's the beauty of American elections, of course, and democracy, is with new leadership comes opportunity to do things better.
GIBSON: The Bush doctrine, as I understand it, is that we have the right of anticipatory self-defense, that we have the right to a preemptive strike against any other country that we think is going to attack us. Do you agree with that?
PALIN: Charlie, if there is legitimate and enough intelligence that tells us that a strike is imminent against American people, we have every right to defend our country. In fact, the president has the obligation, the duty to defend.

Reply Brief in Bartlett v. Strickland

I have uploaded it here. More information about the case, to be argued in the U.S. Supreme Court on October 14, is here.

Garrett on "Direct Democracy and Public Choice"

Beth Garrett has posted this draft on SSRN (forthcoming, The Elgar Handbook on Public Law and Public Choice). Here is the abstract:

Public choice, with its focus on interest groups, relationships among institutions, and the importance of procedures and institutions in shaping policies, has been a significant influence on the literature studying direct democracy. Direct democracy encompasses two methods of providing voters with direct lawmaking authority - the initiative and the referendum - as well as a third method of directly influencing lawmakers outside of the regular electoral process - the recall. Twenty-seven states provide for the initiative, the popular referendum or both; and the legislative referendum is required in every state for adoption of constitutional amendments. When one considers that about half of the nation's cities also provide for some form of direct democracy, it is not surprising to find that 70 percent of Americans live in a state or city or both that allows them access to direct democracy. This chapter will discuss the contributions of public choice to our understanding of direct democracy in three areas: 1) the role of organized interest groups and the influence of money; 2) the ability of citizens to vote competently on initiatives and therefore enact policies that align with their preferences; and 3) the strategic behavior of political actors in a hybrid democracy where initiatives can shape candidate elections and where the successful implementation of direct democracy depends on the actions of often hostile elected and public officials.

Pildes on the "The Legal Structure of Democracy"

Rick Pildes has posted this abstract (no paper) on SSRN (forthcoming, Oxford Handbook on Law and Politics). Here is the abstract:

The institutional structure and legal framework that organize democracy can dramatically shape the practice and experience of democracy. This is true for the most visible, macro-scale institutional choices, such as whether the legislature should be chosen through proportional representation or first-past-the-post elections, and whether the executive-legislative relationship should be a parliamentary or separated powers one. It is also true for many less visible choices, such as the way legal rules structure and regulate political parties; the way in which election districts are designed (in systems that use these districts); the institutional structures and rules by which elections are administered and potentially explosive election disputes are resolved; the methods by which the law permits elections to be financed; or the way institutions and law address the tension between majoritarianism and recognition of minority interests. The 'new institutionalism' in political science and legal studies over the last two decades has generated important insights into the theoretical and empirical dimensions of these effects. This chapter surveys the state of the academic literature in law and political science on these issues. The chapter is part of the forthcoming Oxford Handbook of Law and Politics

"Law Prof Presidential Campaign Contributions: 95% to Obama, 5% to McCain"

See here.

"Utah's Regulation of Issue Advocacy and Multipurpose Organizations Ruled Unconstitutional"

The James Madison Center has issued this press release.

Two Ground Games

This interesting post appears at Hullabaloo.

"State Justice Department sues election officials"

AP offers this report from Wisconsin.

"MS-SEN: Even More Ballot Shenanigans"

Don't miss this post from Adam Bonin. See also this NY Times editorial.

"Lose Your House; Lose Your Vote"

Does this remind anyone else of property qualifications to vote?

Scheduled to Be on AirTalk This Morning

I'll be speaking with Larry Mantle from 10:30 to 11 (Pacific time) today about my Slate piece on the presidential ground game and possibly about the money side of the presidential race. UPDATE: You can listen to the half-hour interview here.

Attention Student Voters!

Know Your Rights (with apologies to The Clash). MORE: Check out this Ultimate College Bowl, a college voter registration drive--the winning campus gets a Death Cab for Cutie concert.

"State high court denies ballot measure"

AP offers this report from Michigan.

"Dan Walters: Would redistricting reform make Capitol more collegial?"

See this Sacramento Bee column.

"Across Country, New Challenges to Term Limits"

The NY Times offers this report.

Why It is Marginally Less Likely We Will Have an Electoral College Tie This Election

See here.

"Obama Broke Fundraising Record"

This post appears at the Washington Post's The Trail blog.

The Florida No Match, No Vote Rule

The Brennan Center warned us back in June that this was coming, and today it did: the Miami Herald reports that the Secretary of State, in what will likely be seen by some as a move to gain partisan political advantage, has decided to enforce the controversial law for the upcoming election. More proof that the presidential election may be all about the ground game. Thanks to Dan Smith for the Herald link. UPDATE: Here's a fuller story from the Herald.

"Judge blocks decision on Senate race"

The Clarion Ledger offers this report, which begins: "A judge has temporarily blocked a state ballot that places the U.S. Senate race between Ronnie Musgrove and Roger Wicker near the bottom of the ballot." Adam Bonin has more at Daily Kos. And I've posted an analysis from the Mississippi attorney general here.

More From Ellen Aprill on the AIP (c)(4) Controversy

Last week I posted Aprill on 501(C)(4)'s, With Special Reference to the American Issues Project Controversy. Ellen now writes that "one of my tax practitioner friends who reviewed my memo offered these further observations regarding the section entitled 'Obtaining Exemption as Section 501(c)(4) Organization' and gave me permission to pass them on..." You can find the addendum here.

More Corrections to Election Law Teacher Database

It is posted here.

"Obama Signal to Dem 'Cavalry' May Be Too Late"

Sam Stein has written this interesting report for the Huffington Post.

The Obama Money Situation

Today's New York Times features this front page story, which begins: "After months of record-breaking fund-raising, a new sense of urgency in Senator Barack Obama's fund-raising team is palpable as the full weight of the campaign's decision to bypass public financing for the general election is suddenly upon it." Also this morning, Marc Ambinder has a must-read post entitled "Quietly, Obama Campaign Calls in Cavalry," which says that "Obama's campaign will no longer object to independent efforts that hammer John McCain, just as, in their mind, the McCain campaign has not objected to those efforts targeted at Obama." (The Center for Competitive Politics applauds the free speech extravaganza.)

From the two pieces, it sounds like a bit of panic coming out of the Obama campaign, reinforced by a major tightening in the daily tracking polls (which I have advised people on both sides to stop obsessing over).

The race is indeed tightening, which explains why the Obama campaign wants a lot of money, and especially wants advertising now before the last major events of the campaign season, the debates. But from a strategic perspective, the decision of Obama to opt out makes perfect sense and does not look like a mistake even in retrospect.

If Obama opted into public financing he could raise no funds for his own campaign (besides about $20 million in GELAC funds---for legal and accounting compliance), and would receive a government grant of $84.1 million. He could help raise funds for the party (the national party can take donations of about $28,800 and the state parties can take more for federal election purposes), and the party could use that money to help him get elected under some convoluted rules that are spelled out in the Times article. This is the route that McCain has taken.

Going the private fundraising route has three risks for Obama:

1. The PR risk. McCain tried to make a lot of hay over Obama's failure to abide by a promise to aggressively pursue a public financing deal with his Republican opponent if he were the nominee. I've explained that neither side has a monopoly of virtue in this area---McCain was against taking public financing before he was for it before he changed his mind again in the primary. But more importantly, this kind of process-inside baseball argument is not likely to resonate with voters.

2. The time sucking risk. If Obama needs to go off in person and attend a lot of fundraisers, that keeps him off the campaign trail as the election closes in 8 weeks from today. First, it appears that most of the in-person fundraisers will be by surrogates. Much of the campaign's fundraising will continue to come from online donors, who now number over 2 million and who contributed an astonishing $400 million+ to the campaign during the primary season.

3. The Outspending Risk. The Times article explains that the Obama campaign may be off its target to raise $300 million for the campaign during the general election season and another $150 million for the Democratic Party. But there's no question that Obama will well outraise the $84 million that McCain will get as part of public financing for the campaign. The Democrats have known that the RNC has had an easier time raising money in those $28,800 chunks than the DNC, so the decision of McCain to opt into the pubic financing program was of little risk to him---the big money will be coming into the party. Faced with that asymmetry,the Obama campaign has taken the artificial constraint off his fundraising so that Obama and the DNC can reach some kind of parity with the McCain campaign and the RNC. In terms of outspending, Obama faced a much bigger risk remaining in the system than he faces by opting out.

The Times article may be just the thing the Obama campaign needs to get some money rolling in---a little panic is probably a good thing from their perspective.

As for the 527s, I think there may be a different explanation than one that Obama needs outside resources. Instead, he needs groups that can go more negative on Palin and McCain. Obama is trying to run as a different kind of politician, and it would interfere with his branding to go overly negative. But outside can attack in ways that Obama cannot (think of the recent union ads attacking the cost of McCain's shoes), and with the race tightening, especially in the battleground states, negative advertising probably is what the campaign wants and needs right now.

The story of money in this election is a fascinating one. I've just completed a draft article (which I hope to post later this week) on changes in the fundraising system during the primary season. I'll be writing another when the entire election is done. Suffice to say that the role of money in the presidential election is changing in some fundamental and important ways. Stay Tuned.

"It's Near the Campaign's End -- Send in the Lawyers"

AP offers this report, which begins:

Four years after Ohio's near meltdown on Election Day, state officials had a novel idea: Put all the political lawyers in one room and ask them to work things out in advance this time.

Good luck with that.

Much of the important lawyering this time is taking place before election day, as I explain in my new Slate article.

Judge Calabresi Writes Interesting One Person, One Vote Decision for Second Circuit

Via How Appealing comes a link to Kalson v. Paterson.

"Concerns abound over voter access in November"

AP offers this report. See also this Wall Street Journal report.

"Ministers want church out of politics"

AP offers this report from Ohio.

"Anti-Obama Group's Future Spending Unclear; Others Spending on Issue Ads for Hill Races

BNA Money & Politics Report offers this report which is a must-read for those following money in politics ($). It begins by noting that American Issues Project, Inc "has no 'concrete plans' for further action during the presidential campaign." It then discusses QNC and WRTL-type activity in this election season.

Appeal Filed in the NAMUDNO Case

Lyle Denniston has the details here at SCOTUSblog, which has also posted the jurisdictional statement. If the Court agrees to hear the case (as opposed to simply issuing a summary affirmance), a decision could issue this coming term (ending in June). I have been watching this case with great interest.

"V.A. to Allow Voter Signup for Veterans at Facilities"

The New York Times offers this report. See also this press release from Sens. Feinstein and Kerry.

"The Ground Game: The Campaigns Have Already Begun Fighting Over Ballots and Rules for Voter Registration"

Slate has posted my latest article. It begins:

This presidential election--like the ones in 2000 and 2004--will be won on the ground in a few swing states. So forget the movements in the Gallup daily tracking poll or the Intrade political market. You don't even need to focus on the electoral-college maps at Pollster.com or Electoral-Vote.com. The 2008 election may well be determined by some of the legal and election administration skirmishes going on now in several key states. Here's a quick rundown.

Justice Breyer Talks About the Bush v. Gore Movie, "Recount"

See here.

"Ohio elections chief challenges registration law"

AP offers this report.

" EAC Chair Calls on Voters to Prepare and Confirm before November Election Register Early and Verify Registration Status"

See this press release.

"Yepsen: Do it yourself, Iowa: Improve the caucuses"

Don't miss this column in the Des Moines Register by David Yepsen. If steps like this are not taken voluntarily, Congressional action is certainly possible.

"Key Questions for Key States"

Election Law @ Moritz has done it again, publishing an indispensable guide to potential election law litigation in the 2008 election. Check out this interactive map, which reminds me of a weather map. (In my mind, I hear my local weatherman stating: "There's a 40% chance of scattered litigation beginning over the Rockies, and spreading to the midwest by Election Day.")

Here's how Moritz describes the project:

Today EL@M publishes extensive new research concerning the legal issues surrounding the 2008 presidential election. The project features an interactive web chart and database that allows the user to perform side-by-side comparisons of 44 critical legal questions across 17 key states. The project also allows the user to access the same information in a more visual way be viewing 44 interactive US maps that are color coded to faciliate analysis and discussion. Finally, the project includes an interactive map that allows the user to see our analysis of the states most likely to experience election-related litigation prior to November. All of these maps and charts allow the user to see more detailed factual and legal research, including citations, by clicking through to the heart of our database. The executive summary of the project may be found here.

"Flawless Vote Counts"

MIT's Technology Review features this post with a very revealing chart of voting technologies used in the U.S.

"New 527 Group Plans Attack on Obama Themes"

Josh Gerstein reports.

"Georgia Democratic Party Sues over Voter ID"

Atlanta Progressive News offers this report.

"Clean Elections on Its Death Bed"

George Amick has written this column for NJ.com. He seems to believe, as I do, that the Arizona decision is a fig leaf for shelving the New Jersey public financing program.

"Voter Registration by Students Raises Cloud of Consequences"

The NY Times offers this report. See also this story from Inside Higher Ed.

More Hayward v. Bauer on AIP

See here.

PR Coming to Cincinnati City Council?

See here.

"FEC Moves to Get Bundling Rule on Track with Hearing Set for Sept. 17"

BNA Money & Politics Report offers this report ($).

"Too Generous"

The NY Times offers this editorial. It begins: "Conflict-of-interest disputes often turn on arcane points of law, but that is hardly the case with the controversy over the West Virginia Supreme Court and Massey Energy."

"New Study: New Mexico Leads in On-Campus Polls, Equipment Uniformity"

FairVote has issued this press release about its new report.

Federal District Court Grants WRTL-Type As Applied Exemption from Ohio Law Banning Corp. Funds Spent on Elections; Court Says Disclosure Provision is Constitutional

You can find the ruling here. See also this post at the Center for Competitive Politics blog.

"Protecting Your Vote With Invisible Ink"

Discover Magazine offers this report.

"Libertarian ballot battle has its day in Pa. court"

AP offers this report.

NPR's "Science Friday" on Voting Machine Issues

Listen here.

von Spakovsky on Absentee Ballot Fraud

Hans von Spakovsky has written Absentee Ballot Fraud: A Stolen Election in Greene County, Alabama, a legal report for the Heritage Foundation. The first time I heard Hans speak was at a Caltech-MIT Voting Technology Project event at Caltech in 2001. He talked about the potential for absentee ballot fraud. It always struck me he was on much more solid ground focusing on out-of-sight voter fraud than on polling place voter fraud.

Another Intellectual Property Dispute Over a Campaign's Use of Copyright Protected Material

Barracuda. Who knew it was about the music business and how it treats women? Perhaps Democrats will latch on to these lines from the song:

If the real thing don't do the trick
You better make up something quick.

Aprill on 501(C)(4)'s, With Special Reference to the American Issues Project Controversy

I am no expert on tax law or the law of non-profits, but my colleague Ellen Aprill is, and I've been talking to her about the controversy over the American Issues Project ads. (My earlier post on the campaign finance issues surrounding AIP is here.)

Ellen has written up her thoughts in a six-page document that is a must-read for those who want to understand the tax side of this controversy. It seems that in this case, the tax law questions are at least as unsettled as the campaign finance law questions. Thanks so much Ellen!

"Phila Council Bill Could Eliminate 2 GOP Seats"

This article appears at Philly.com.

"Thousands of Americans Faced with New Polling Places in November"

That's the lead story in this week's Electionline.org Weekly.

"Hunt for missing ballots widens in Palm Beach County"

The South-Florida Sun-Sentinel offers this report.

"Much has changed in Wash. elections since 2004"

AP offers this report.

"whiny 'family man' wants to be Family Court judge -- and to copyright the slogan"

See this post at f/k/a.

My Neighborhood Middle School's Picture Featured in Sen. McCain's Speech

This is odd. Could it indeed have been a search for Walter Reed Medical Center?

Great Teaching Tool for WRTL Campaign Finance Case

A few months ago on the election law listserv, Rick Pildes asked if the ads at issue in the Wisconsin Right to Life v. FEC litigation are available somewhere on the web. I checked with Jim Bopp, counsel for WRTL, and he's given me permission to post two audio files and a video file containing the ads. This will be great to play for students as you teach this case.

Loan (audio file)

Wedding (audio file)

Waiting (video file)

Thanks Rick for the idea and Jim for the permission.

"Using campaign finance law as an electoral sword"

This post appears at the Center for Competitive Politics blog. It begins: "The American Leadership Project (ALP), an independent 527 organization once denounced by Barack Obama's presidential campaign when the group touted issues associated with Senator Hillary Clinton's presidential campaign, returned last week with advertisements criticizing Senator John McCain's energy positions. The new ALP advertisements have been met with no apparent response from the Obama campaign despite being nearly identical in form to the advertisements ALP produced previously in the primary campaign." Bob? UPDATE: Bob Bauer responds. He seems to have read way too much in my "Bob?" question at the end. It is not that I thought there was any particular credence to the CCP posting--I was not intending to suggest that I thought the argument was valid. It is that I did not expect the CCP posting to be unanswered by Bob. And in that prediction I was correct.

"The ballots are missing, so start finding answers"

The Palm Beach Post offers this editorial. For those who remember the 2000 election, the opening sentence is chilling.

David Primo Gets Tenure at Rochester

Congratulations David. I'm a big fan of his work.

Updated Election Law Teacher Database

You can find the updated database here. And it will be available later on the right side of this blog under "Election Law Resources."

"Poizner May Be GOP Savior on Redistricting"

Roll Call offers this report ($), which begins: "In a twist of political irony, the California Republican who invented the computer-mapping technology that was later adapted to gerrymander House districts is on a mission to reform the redistricting process in the Golden State and might be the only man who stands between the Democrats and their desire to eliminate GOP seats in 2011."

Natonal Center for State Courts Election Law Program Now Available

I made the first part of these videos last year. Ned Foley and Avi Rubin did the other modules. You can find everything now posted here.

"Ruling possible today on putting reform issue on ballot"

The Detroit Free Press offers this report.

"High court axes 3 key amendments; The Florida Supreme Court removed three high-profile constitutional amendments from the November ballot, including one calling for a tax-swap plan."

The Miami Herald offers this report (More from Howard Bashman here). I wonder how this will affect turnout in Florida, and especially how it affects the presidential race there.

"New push to pick the president by popular vote"

The Christian Science Monitor offers this report.

"Alaska Party Official Says Palin Was Not a Member"

The NY Times Caucus blog reports. Her husband, however, belonged to the party until 2002.

Federal District Court in Arizona Denies TRO Barring Matching Funds Portion of Arizona Public Financing System, But Legal Analysis Says Law is Unconstitutional*

* The title of this post and the substance of this post has been corrected. The original post said that the TRO had been granted. It was denied in a balancing the hardship analysis. On the law, the judge believed the matching provision of the law is unconstitutional. Sorry for the error. The original post appears below.

I have posted the court's order here. There is an upcoming hearing on a request for a preliminary injunction, which could then be appealed to the Ninth Circuit. The district court relied upon the Supreme Court's opinion in FEC v. Davis, reading it in a way I suggested was a likely reading by a court hostile to such regulation.

Given that this is just a ruling on a TRO in Arizona, it is certainly not binding on a New Jersey legislator in deciding whether or not to keep the matching program on the books. But it is a nice fig leaf.

More on the Arizona ruling here.

"How to Replace a Vice Presidential Nominee"

Slate offers this Explainer. More from Josh Green on The Eagleton Scenario, which quotes Ben Ginsberg on GOP replacement rules.

Allison Hayward on the AIP Controversy

Here in the Weekly Standard. UPDATE: Bob Bauer responds.

"Anti-Obama Nonprofit Group Relies On Obscure 'QNC' Waiver of FEC Rules"

BNA offers this very interesting report ($).

GOP Primary Rules

AP reports:

Moments before the platform vote, delegates voted overwhelmingly to ban states other than Iowa, New Hampshire and South Carolina from holding their 2012 primary or caucus votes before the first Tuesday in March. Those three states traditionally kick off the nominating process, but they were challenged this year by other states that moved up on the calendar.

Under the binding rule adopted Monday, Iowa, New Hampshire and South Carolina cannot hold their own votes before the first Tuesday of February 2012. This year, Iowa held its caucuses on Jan. 3, and New Hampshire and South Carolina held their primaries on Jan. 8 and Jan. 19, respectively.

"New Jersey 'Clean Elections' Program Dead--For Now"

See here.

A Palin Withdrawal Scenario

I took a lot of grief from some conservatives for this post from Friday, the day the Gov. Palin pick was announced, discussing whether and how Sen. McCain could withdraw Palin as his VP candidate if necessary. The post was characterized by some as "liberal wishful thinking." Perhaps. But with the many revelations about governor Palin, perhaps most importantly her ties to the Alaska secessionist party, the American Independence Party (whose leader has suggested that members "infiltrate" the two major parties), I think withdrawal of the expected nomination before the election is a real possibility. Real enough that Intrade has started taking bets on the question.

"Don't Like Palin's Wikipedia Story? Change It "

The NY Times offers this fascinating report.

"Push for Poll Workers As Election Nears"

The Washington Post offers this report, which begins: "Elections officials across Washington are scrambling to recruit enough poll workers for the November election, plastering banks and grocery stores with posters and advertising in newspapers to prepare for what could be a record turnout."