Blackberry test post

This is a test. I am Treo free.

A Third Perspective on Obama and Small Donors

Earlier this week, the Campaign Finance Institute issued a report, "Reality Check: Obama Received About the Same Percentage from Small Donors in 2008 as Bush in 2004; Obama Also Raised 80% More from Large Donors than Small, Outstripping All Rivals and Predecessors." The release quotes Michael Malbin as saying "The myth is that money from small donors dominated Barack Obama's finances....The reality of Obama's fundraising was impressive, but the reality does not match the myth."

Bob Bauer responded with a blog post calling the CFI report "strange" and "peculiar:" Bob concludes that "small donors, contra CFI, were the 'financial engine of the Obama campaign,' for the reason, not denied by this study, that without them, the record-breaking performance would not have been possible." He suspects that the reason for CFI's analysis is a "worry that the reform program will falter on too strong a showing that such a small donor, Internet-driven candidacy can succeed on private funding alone."

Some of this debate is semantic and depends on categorization. The two divide over whether donors who give more than $200 but less than $1,000 (or donors who give more than $200 in the aggregate through small donations) should still be considered 'small donors." Michael's point seems to be that it is not true that donors giving very small amounts in the aggregate (under $200, who I have termed "micro-donors") "drove" Obama's fundraising. Bob thinks Michael's categorization of small donors is unduly narrow.

There is something more than semantic to this argument. If the Obama campaign demonstrated that one could run a viable presidential campaign fueled principally or primarily by micro-donors, that would be an important milestone for political equality in campaign funding (a point I make in my draft paper). The CFI report acknowledges that Obama raised so much money overall in so many categories (from micro-donors to bundled contributions, mostly at the maximum of $2,300 per person) that it is hard to draw firm conclusions generally. Importantly, we cannot use the Obama campaign to draw conclusions about the viability of a solely (or mostly) micro-donor funded campaign.

Yet despite the fact that the percentage of micro-donors is comparable across other recent primary campaigns (Obama 26%, McCain 21%; Clinton 16%; Kerry 20%; Bush 25%), the overall amount of money raised by Obama from micro-donors is impressive: $117.7 million. Bush (2004 primary) comes in second with $64 million. Obama's campaign doesn't prove that micro-donors can be the primary funders for a presidential campaign, but it sure suggests it is possible.

The numbers are also useful in seeing how campaign fundraising techniques are additive rather than substitutionary. Obama did not choose to replace bundling with Internet-based small fundraising; he aggressively pursued both.

Finally, one of the great lessons of the Obama campaign is the frequency of "repeater" donors, especially at the lower end giving over the Internet. According to the CFI report, over 200,000 Obama donors started off giving contributions of $200 or less and then crossed the reporting threshold by giving more. CFI: "About 93,000 of these repeaters gave in cumulative amounts of no more than $400 for the full primary season. Another 106,000 repeaters ended up between $401 and $999." So some of what must be studied now is not why these donors gave, but why they gave repeatedly. How much was due to enthusiasm for the candidate, how much to the long campaign, and how much to the lower transaction costs of repeat giving over the Internet with saved account information?

There's plenty to chew on here, and people will be studying the Obama fundraising phenomenon for some time. I am personally grateful to CFI for making these data public and allowing us to draw our own conclusions about the normative implications of the 2008 election.

"Are Long Lines the 'New Poll Tax'?"

In These Times offers this article containing this interesting graphic. I'd be interested to hear from others if the methodology of this study is sound (especially in its reliance on news reports of long lines).

"'Unbelievable' sum of money in Ga. runoff"

USA Today offers this report.

Quote of the Day

"I am about 99 and 44/100 percent convinced that the loser goes to court."

---David Schultz, commenting on the Minnesota Senate controversy.

Bauer Piles On

In this post, I criticized the FEC for issuing an "Advisory" Opinion that offers no advice: the FEC just could not agree on whether the second of two ads under discussion was entitled to an exemption from certain campaign finance rules on constitutional grounds. Bob adds the following salient point which I was remiss in not making: " This decision is without a doubt remarkable, in part for the reason that Hasen notes. Not to be overlooked is another reason: for neither this ad, nor for another it ruled on, does the Commission offer any explanation for its conclusion."

The FEC must do better, even if it means that commissioners issue their own separate explanations as to the basis for their votes.

Law Professor Mark Alexander on Obama Transition Team Reviewing FEC

See here.

Guy Charles from Minnesota to Duke

See here. Good luck, Guy, on the new Center for Race and Politics.

Government's Motion to Affirm in NAMUDNO Now Available

You can read it here. The government wants a summary affirmance. More at SCOTUSblog.

FEC Cannot Give Advice on Anti-Obama Ad

See this advisory opinion. The FEC could not decide if an ad that contains no words of express advocacy, but that says "Barack Obama, a candidate whose word you can't believe in," constitutes an electioneering communication that cannot be paid for with corporate treasury funds. Truly the law is now beyond incoherent.

Apparently CQ Politics reads the AO differently, stating that "The commission ruled that the version of the ad containing that language crossed the line by advocating the election or defeat of a candidate, which is not allowed by federal law governing issue ads." Perhaps they, or I, am working on the wrong version of the AO?

Dec. 4 Making Elections Work Conference to Be Webcast

You can watch live or an archived webcast. It is not too late to RSVP for this free event.

NAMUDNO Motion to Dismiss or Affirm Due Today

The docket says.

Minnesota Senate Race Update

The Star Tribune offers Board Denies Franken's Request on Rejected Absentee Ballots. The Hill offers Franken Won't Appeal Absentee Ballot Decision. The Minnesota Independent offers Screw U: University students turned away from polls on Election Day and Somali Leader: Franken Vote Influencing May Have Occurred 500 Times. And John Fund has written The Battle for Minnesota is Just Getting Started for the Wall Street Journal.

"New Bush v. Gore Precedent"

Ned Foley comments. The opinion is here.

"State court to decide ballot fight"

The Columbus Dispatch offers this report, which begins: "An appeals court ruled yesterday that a federal judge erred in determining that Franklin County's disputed provisional ballots can be counted. The 6th U.S. Circuit Court of Appeals ruled that the issue involves state law -- not federal -- and it sent the case back to the Ohio Supreme Court, where it started. The unanimous ruling was made by Judges Jeffrey S. Sutton, Cornelia G. Kennedy and David W. McKeague."

"Grand Jury to Look at Muncie Mayoral Election"

The Star Press offers this report.

"Senate Recount: Lost, Found, Challenged"

More from Minnesota.

"Obama Places Stringent Limits on Inaugural Contributions"

The NY Times offers this report.

"Inquiry Set on Mormon Aid for California Marriage Vote"

The NY Times offers this report.

"Recount wrinkle surfaces in Minnesota: missing ballots"

The latest from Minnesota. See also Election Judge in One County; Franklin Observer in Another.

Another View of the CFI Report

Here, at MYDD.

"Voter Registration Should Be Automatic"

Robyn Blumner has written this column for the Hartford Courant.

"Ex-ACORN worker gets home term in voter fraud case"

AP offers this report. Key passage: "Barksdale must also pay the group $574 restitution after pleading guilty to forgery, theft and other charges."

"Texas Congressional Clout DeLayed"

Gerry Hebert has written this post for the CLC blog.

"From One Footnote, a Debate Over the Tangles of Law, Science and Money"

Adam Liptak has written this column in the NY Times about a footnote in the Supreme Court's recent Exxon Shipping case regarding the propriety of the court relying on research funded by a litigant. I first blogged about that footnote the day the opinion appeared in this June 25 post. (See also Tony Mauro's column on the footnote and my post about it.)

Bauer on the CFI Report

See here. I hope to weigh in on this in the next week or two. From a quick read, I don't find the CFI criteria "strange" or "confusing" the way Bob does.

"Run-up in ballot challenges cloud Coleman-Franken recount "

The latest from Minnesota. Is the Franken-Coleman race a reason to move to instant runoff voting?

"Despite uproar, just 2 votes questioned"

The Cincinnati Enquirer offers this report.

"Q&A with the Lizard People voter"

The news we've all been waiting for.

Another One-Vote Case

Who says each vote doesn't matter?

"REALITY CHECK: Obama Received About the Same Percentage from Small Donors in 2008 as Bush in 2004"

The Campaign Finance Institute has issued this must-read report. When I get myself out of the hole I'm in as I complete a book manuscript, I plan to comment on this.

Are Patronage Appointments Better?

See here.

One-Vote Margin in Indiana County Race

A recount begins.

"Several Questionable Ballots Tossed Out"

The Columbus Dispatch reports.

"GOP Money Crisis"

Eliza Newlin Carney's latest column is on the new RNC suit against BCRA's soft money rules.

"Sloppy Dems may spell Franken advantage"

Politico offers this report. See also this Star Tribune report, this WSJ editorial, and this interview with Marc Elias.

The Latest from Minnesota

The Star-Tribune offers Day 4: Ballot-counters press on, find glitches and Rejected Absentee Ballots May Decide It.

In yesterday's article, the newspaper noted the following:

Asked at one point whether he would concede if the board certified Al Franken as the winner, as the senator had suggested Franken do the morning after the election, Coleman didn't answer directly.

However, he expressed second thoughts about his comments that morning. He noted that his lead at the time was substantially larger, more than 700 votes, and also that he hadn't slept in 36 hours. Now, he said, "I don't think I'd have made the same statement."

"Analyzing the Two Key Arguments in the California Supreme Court Case Regarding the Anti-Same-Sex-Marriage Proposition Eight"

Vik Amar has written this Findlaw column.

Demos Has a Nicely Redesigned Website

See here. Also check out the Demos blog.

"DC GOP: Independent Is Really A Democrat"

See here.

Issacharoff on "The Constitutional Logic of Campaign Finance Regulation"

Sam Issacharoff has posted this draft essay on SSRN (forthcoming, Pepperdine Law Review). Here is the abstract:

This essay explores the potential implications of the creation of a distinct "election period" through the BCRA reforms to campaign finance law. The idea of a separate set of rights of expression during the immediate pre-election period is a relative newcomer to American law, but is a central feature of campaign finance law in other countries. The creation of a defined election period is the underpinning of strong restrictions on political speech in countries such as Britain, and is currently the source of tension under European law. Recent decisions of the European Court of Human Rights, most notably in Bowman v. United Kingdom, highlight the fundamental divide between animating conceptions of liberty and equality in the funding of the political process. By mildly introducing the idea of a separate regulatory sphere for a temporally-defined election period, BCRA intriguingly invites a reexamination of the core constitutional logic of American campaign finance law.

I'm looking forward to reading this!

"2008 Election Results Poster"

Now available at Election Data Services.

"The Slow and Contested Count for One Last Senate Seat"

It is not the race you expect.

"The Internet and the 2008 Election"

The Pew Internet and American Life project has issued this report.

"There's Nothing Unusual About the Minnesota Recount "

Marc Elias, one of Al Franken's lawyers, has written this letter to the editor of the Wall Street Journal. For the latest on the recount, which has narrowing numbers, see here.

"Obama Raised More than $500 Million Online"

Political Wire offers this report, linking to this must-read WaPo column.

"Provisional ballots could alter tight Ohio race"

AP offers this report, which begins: "Provisional ballots must be counted in a tight congressional race in central Ohio, one of the last undecided contests in the nation, a federal judge ruled Thursday. The decision by U.S. District Judge Algenon Marbley could affect the outcome of the race between Republican Steve Stivers and Democrat Mary Jo Kilroy in the 15th District. But his ruling was immediately appealed, and provisional-vote counting was put on hold for another week." You can find the judge's ruling here.

"Ballot counting, the nitty-gritty of democracy, marches steadily on"

The LA Times offers this report.

Tenth Circuit Reverses District Court, Upholds Albuquerque Voter ID Law Against Equal Protection Challenge

You can find the opinion, issued Monday, here.

A Fantastic Exercise in Determining the Intent of the Voter in Minnesota Race

See here. What a fantastic teaching tool. And, be sure to compare your results to the other voters. (Because this is through Minnesota Public Radio, however, I would suspect there would be more Democrats "voting" on how to treat each ballot than the overall Minnesota population.)

Do try this at home.

UPDATE: A reader makes the following important point: "The graphics are nice but the exercise is over-simplified. In Illinois recounts, when one encounters an equivocal mark, the first thing one does is to look at the marks on the rest of the ballot to determine whether this voter uses the same equivocal mark to mark many or all of his choices. If he is consistent, his intent in the questioned race can be deduced both by the mark itself and also from the context. If the intent still is not clear from both the mark and the context, the mark doesn't count. Sec. 13 of the Minnesota Recount Guide 2008... suggests that the same methodology applies there."

"Day 2 of Senate recount starts with narrowing margin"

The Star-Tribune offers this report. Nate Silver offers indispensable analysis.

"Flunking the Electoral College"

The NY Times offers this editorial.

The American Spectator on the NAMUDNO Case

See here.

"Remember 'voter fraud'? Scandal was Mickey Mouse"

The Palm Beach Post offers this editorial.

"Election board reports three fraud cases"

The Chronicle-Telegram (Lorain, Ohio) offers this report.

California Supreme Court To Decide if Propositon 8 is an Unconstitutional Revision of State Constitution

You can find the court's order here. Also to be briefed is whether the proposition violates the separation of powers in the state constitution (as well as the effects of same-sex marriages already performed).

Contrary to Eugene Volokh's suggestion, it does not appear that an argument that the measure violates the federal constitutional guarantee of equal protection is fairly before the court in its review.

It is also noteworthy that the California Supreme Court denied a stay request pending briefing in this case, with only Justice Moreno voting to grant a stay. That is some indication, though not necessarily a very strong one, that the court will vote to uphold Prop. 8 (the reason is that one of the factors in determining the grant of a stay is likelihood of success on the merits).

"The Morning After, Voting Problems Remain"

National Journal offers this report.

"McCain wins Missouri. Kind of. Two weeks later. Obama is still the prez, of course..."

Prime Buzz has the details.

"Minnesota's Senate recount is underway: 1 by 1 until 2.9 million"

The Star-Tribune offers this report. Meanwhile, Roll Call offers Coleman: Franken Wants Senate to Resolve Election.

"Begich topples Stevens in Senate race"

The Anchorage Daily News offers this report.

"Grand jury indicts man in voter-registration fraud"

The Columbus Dispatch offers this report.

"Recall specter hangs over high court as it considers Prop. 8 challenges"

The LA Times offers this must-read article. I was thinking that the Court might be inclined to deny the original writ, sending this to the lower court and buying the Supreme Court a few years. Within those years, the California Legislature (or the people through the initiative process) could put a measure overturning Prop. 8 on the 2010 primary ballot. If it passed, it would moot the legal challenge. But the Chief Justice has a lot invested in the earlier gay marriage ruling, so I am not sure that this is the path he will want to take.

Clinton's Debt

Bloomberg offers Clinton May Need to Pay Off Debt Before Taking Post.

But Politico offers State: HRC's Ticket to Debt Forgiveness?.

"Analysis: Obama won as more minorities, fewer whites voted"

McClatchy offers this report. See also this report at AlterNet.

Bauer on Lines at the Polls

See here.

"Edward B. Foley: In '62, Minnesota set the recount standard"

This opinion piece appears in the Star Tribune.

"Ousting Stevens: Senator Down the Tubes?"

Interesting, though arguably moot.

"Think Tanks Present Policy Proposals to President-elect Obama"

This press release begins: "PolicyArchive.org, the leading digital repository of public policy research developed by the Center for Governmental Studies (CGS) and Indiana University-Purdue University Indianapolis (IUPUI) University Library, has just launched a new online collection of presidential transition papers called Presidential Advisory '08. Featuring policy recommendations from over 20 think tanks for President-elect Obama's upcoming administration, the collection is a free resource for the public.

"Seeking Closure the Hard Way in Undecided Senate and House Races"

"The Lede" blog at the NY Times offers this interesting report.

Bush v. Gore Issues in Minnesota Recount?

Could be.

"Begich lead over Stevens grows"

The latest from Alaska.

"Near Universal Agreement on the Need for Universal Registration: Experts and media call for sweeping reform of how voter registration is conducted in America"

Project Vote has issued this press release.

Brawl on Voter Fraud Allegations Breaks Out in Senate Judiciary Committee Report on U.S. Attorney Firings

The majority and minority reports have some interesting discussions of voter fraud.

A snippet from the majority opinion:

The evidence shows that senior officials were apparently focused on the political impact of Federal prosecutions and whether Federal prosecutors were doing enough to bring partisan voter fraud(52) and corruption cases.

52 The minority views filed by Senators Kyl, Sessions, Brownback and Coburn repeat partisan talking points from the last election equating voter registration fraud with in-person voter fraud. Only the latter threatens to affect the outcome of an election. As both this Committee and the Senate Rules Committee have demonstrated in numerous hearings, the myth of in-person voter fraud is just that. In their recent amicus brief to the United States Supreme Court a number of present and former Secretaries of State from Georgia, Maryland, Missouri, Ohio and Vermont noted that "in Federal elections between 1996 and the present, in which more than twenty-four million votes were cast" not a single case of voter impersonation fraud occurred at the polls. The Federal Judge who reviewed and dismissed a Justice Department suit against Missouri concluded: "It is ... telling that the United States has not shown that any Missouri resident was denied his or her right to vote... [n]or has the United States shown that any voter fraud has occurred."

From the minority report:

Perhaps the most Orwellian aspect of the Majority report is its repeated insistence that there is no vote fraud in this country that is ever worth investigating. At one point, the Majority even places scare quotes around the term, lest anyone receive the impression that the Majority believes that voter fraud could ever be a real problem. Yet during the federal elections just concluded, the American public saw numerous examples of serious attempts to commit voter fraud in this country.

Most of these incidents involved the Association of Community Organizations for Reform Now (ACORN), a group that actively promotes voter registration in many cities across the nation. ACORN tends to target areas where it believes that it can register Democratic voters, such as parks, public-assistance agencies, and liquor stores, ACORN's history is littered with claims and convictions of fraud. and generally hires part-time workers who are paid for each registered name to canvas these areas. In this election cycle, many different groups, from journalists to the GOP, strongly criticized the integrity of the organization's registration methods. As early as September, state officials reported fraudulent voter registrations submitted by ACORN, and as of October 6th, the New York Times reported that about 400,000 ACORN filings had been rejected by authorities as duplicates, incomplete, or fraudulent. After comparing their voter registration rolls, Georgia, Florida, and Ohio found 112,000 duplicate voters registered in two states, and authorities have rejected ACORN applications attempting to register such "voters" as Mickey Mouse and the Dallas Cowboys' offensive line.

(footnotes omitted) The minority report continues for two more pages with specific instances of what it identifies as voter fraud, citing mostly the Powerline blog and John Fund's columns.

Former SG Clement Reflects on Oral Advocacy in McConnell Case

Here.

"Al Franken's vote-tally appeal blunted"

The Star Tribune reports.

"GOP Lawmakers Seek End Of Vote Window"

AP offers this report.

More Bauer on Bopp and the RNC Suit

Here.

"Obama, McCain skip public-funding chat"

The Politico offers this report.

Foley: A Visible Reason that Precludes a Victory Lap

Ned Foley has written this guest post for my Fixing Election Administration series:

A Visible Reason that Precludes a Victory Lap

I generally agree with much of what Doug Chapin says in matters of election administration and specifically agree with three points he makes in his contribution to Rick's cyber-roundtable on this topic:

first, it is important not to be overly alarmist about the prospects of the voting process in advance of Election Day, as some voter protection groups sometimes seem to be;

second, from initial appearances the process on November 4 generally went better than many expected, especially in states that lacked early voting;

and third, preliminary assessments of the voting process in this year's general election are necessarily incomplete, since provisional ballots have yet to be counted and other aspects of the process remain unfinished (a point I made in my own previous post in this series).

Nonetheless, despite these points of agreement, I differ with Doug on his assertion that the voting process is entitled to take a "victory lap" based the "successes" of this year.

Nor do I believe that it is necessary to invoke Heather Gerken's notion of an "invisible election" in order reject Doug's "victory lap" characterization. Heather may well be correct that an overabundance of problems went unreported. But one glaring defect did not, although it is not mentioned by Doug and somewhat downplayed by Heather.

This flaw is the unconscionably long lines that some voters were forced to endure on November 4. As I argued in my own earlier contribution to this dialogue, this is one patently indefensible practice that need not await a final gathering of evidence in order to be condemned as unacceptable--and thus it prevents a declaration of administrative success about November 4.

Heather refers to waits of "three hours of more," and of course the fact that it takes anyone three hours to cast a ballot on Election Day should be horrific enough. But three hours is mild in comparison to what the media reported.

A cursory LexisNexis search reveals the following news stories:

Lines four to five hours long in Maryland (NPR)

Up to five hours in Indiana (Nobelsville Ledger)

More than 5 hours in Detroit and Philadelphia (Stateline.org) [an article that quoted Doug on a different point]

Four and six hour waits in Missouri (St. Louis Dispatch)

Six and seven hour waits in Virginia (Virginian Pilot, Gannett News)

Seven hour waits in Pennsylvania (Philadelphia Inquirer)

But that is not all. Amazingly, there were multiple reports of voters in Pennsylvania waiting for eleven or eleven-and-one-half hours to cast their ballot on November 4! One report, from CNN about Upper Darby voters, was republished in an Australian newspaper. Two other separate reports, about precincts at "Allen High" and "Lincoln University... in Chester County," were published in Morning Call, an Allentown paper.

To be sure, these fiascos did not occur in every state or everywhere in a single state. But no voter should have to suffer such hardship on Election Day, especially in a state like Pennsylvania that lacks an early voting option.

The fact that voters this year were willing to withstand this injustice, in order exercise their democratic right to participate in this historic election, hardly excuses the administrative malfeasance perpetrated against them.

There could have been massive disenfranchisement, or civil unrest, if voters had lost their patience as they reasonably might have. The administrative system deserves no credit for their having been extraordinary in their willingness to wait.

Thus, if November 4 involved a victory in the operation of the democratic process, it was the voters' own victory in triumphing over the adversity imposed upon them by the system. But that is not the kind of victory that Doug appears to have in mind.

He suggests instead an administrative victory that the election officials are entitled to celebrate. I for one, however, do not think such official celebrations are in order when voters must wait five, six, seven--even eleven hours--to cast a ballot on the only day that the law permits them to do so.

Ned Foley

"Now the Hard Part: Can Obama Keep His Promises on Ethics and Transparency?"

Eliza Newlin Carney's latest.

"Alito's Way: Changes on the Court Usher in a Reversal of Course On Campaign Finance Reform"

Adam Liptak has written this article (featuring the comments of Richard Briffault and Nate Persily) for the Columbia Law School's alumni magazine.

'Hilary Movie:' Campaign Finance Victim?

The First Amendment Center offers this analysis.

Will the First Clash Between the Obama Administration and the Roberts Court Come over the Voting Rights Act (NAMUDNO)?

So suggests this LA Times piece.

"Alaska voter turnout may set a record"

The Anchorage Daily News offers this report, which begins: "Alaska voter turnout for this year's election appears now on track to be the highest ever.That's contrary to hand-wringing about why Alaskans didn't show up for this historic election, and even some speculation that ballots weren't being counted....The state will count the final absentee and questioned ballots Tuesday -- about 24,000 of them. Even if a third of the questioned ballots are disqualified, that will put the turnout above 320,000, the most Alaskans who have ever voted."

I suppose this means Tuesday we'll have a winner declared in the Senate race, and then face a possible recount.

UPDATE: Much more from Scott Rafferty.

"What's the matter with Missouri?"

Politico offers this report, which begins: "Nearly two weeks after Election Day, Americans know who their next president will be. But voters in Missouri still aren't quite sure which candidate their state preferred."

New Student Work on Election Law

Adam Welle has written Campaign Counterspeech: A New Strategy to Control Sham Issue Advocacy in the Wake of FEC v. Wisconsin Right to Life for the Wisconsin Law Review.

Also, the November 2008 Developments issue of the Harvard Law Review (on Westlaw, but not yet at the journal's webpage) discusses in student notes both the Davis case and the Riley case, with the possible effect on NAMUDNO.

"The $639 Million Loophole"

The Wall Street Journal offers this editorial.

Georgia SOS Handel Responds to Cynthia Tucker Column

See this Atlanta Journal-Constitution column. A snippet: "When it comes to voter fraud, the real 'myth' is Tucker's repeated claims that it does not exist. This fall, my office worked to bring indictments against a sitting State Court judge in Chatooga County on three counts of voter fraud. We are also investigating numerous allegations of voter fraud from this election, including voters casting ballots in multiple states, questionable voter registrations, attempted in-person voter fraud and even voting by non-citizens."

Don't Forget to RSVP for the ELJ/UCDC/AEI-Brookings Event on Dec. 4

You can find an updated agenda and rsvp information here.

Supreme Court Denies Cert. in Ohio Petition Circulator Case

See here. I had thought, especially given the circuit split, that the Court would have taken this case.

That's too bad. It would be good to get some clarity in this area.

Next up on the Supreme Court's election law agenda: NAMUDNO.

"The RNC Attack on McCain-Feingold--in Association with Mr. Bopp "

Bob Bauer comments.

Gerken: The Invisible Election

Heather Gerken has written this guest post, as part of my Fixing Election Administration series:

The 2008 presidential election was one of those remarkable moments in politics when the nation was paying attention. After a riveting primary season and general election, the race ended with millions watching the first black man to accept the presidency.

There was also an invisible election in 2008 -- the nuts-and-bolts of election administration that journalists rarely report and citizens rarely see. Even election experts catch only glimpses of the invisible election. In the immediate wake of the election, experts must rely on reporters, and reporters won't bother to investigate, let alone report on, problems that don't affect the outcome. It's only when the race is close--as in Florida 2000 and Ohio 2004--that we see what really happened at the polling place. To be sure, when political scientists eventually start to crunch numbers, data can give us some sense of what problems arose. But the data we have are often so sparse and haphazard that they can give us only a partial sense of what occurred.

I am one of the few people to have gotten a pretty good view of the invisible election, and the reality does not match the reports of a smooth, problem-free election that have dominated the national media. As part of Obama's election protection team, I spent 18 hours working in the "boiler room," the spare office where 96 people ran national election day operations. Obama's election protection efforts, organized by Bob Bauer, were more generously funded, more precisely planned, and better organized than any in recent memory. Over the course of the day, thousands of lawyers, field staff, and volunteers reported the problems they were seeing in polling places across the country. A sophisticated computer program allowed the lawyers and staffers in the boiler room to review these reports in real time. In many places, everything ran smoothly, just as the media have reported. There were glitches, to be sure, but there were enough poll workers and election administrators to fix them as they came along.

Other jurisdictions simply fell apart as wave after wave of voters crashed down upon them. Thousands of people had to wait three hours or more to vote. In some places, there weren't enough machines to process all the voters. In others, there were plenty of voting machines, but voting booths stood empty because there weren't enough poll workers to check people in. Machines broke down. Parking lots were full. Polling places were hard to find or had been moved at the last minute. Poll workers didn't know basic rules about provisional ballots and election protocols. Far too many people showed up at the polls thinking they had registered, only to be told they weren't on the rolls. A bewildering number of polling places needed pens by mid-day because theirs had run out of ink. Many polling places simply ran out of ballots.

These problems occurred even though more voters than ever before (an estimated third of the electorate) cast their ballots before Election Day. They occurred even though everyone knew that turnout would be extremely high. They occurred even though at least one of the campaigns -- recognizing that victory depended on an election system capable of processing hundreds of thousands of new voters -- had done an extraordinary amount of work in helping election administrators get ready for the turnout tsunami that was approaching.

I draw three lessons from the time I spent watching the invisible election unfold, all of which point to the need to make the invisible election visible to the public, to policymakers, and to election administrators themselves.

First, it is essential that the public see the invisible election. We are never going to get traction on reforming our election system until we have a means of making these problems visible to voters. Virtually every media outlet has reported that the election ran smoothly. The reporting was simply incorrect for a surprising number of jurisdictions. I have recently proposed that we create a Democracy Index, ranking states and localities based on how well they run elections. Without good data on how the election system is performing, voters learn that there's a problem only when an election is so close that the outcome is in doubt and reporters devote the time necessary to investigate what actually happened. That's a bit like measuring annual rainfall by counting how often lightning strikes. The Index would help us assess the problems that occur routinely, before they cause what Rick Hasen has called an "electoral meltdown." Moreover, it would allow voters to reward strong performance. Right now, voters lack the information they need to differentiate between a bullet dodged and a well-run system ... between luck and skill, in the words of Thad Hall.

Second, we need to make the invisible election visible to policymakers. Most of the problems I saw from the vantage point of the campaign's boiler room seem to have been caused not by partisan mischief, but by neglect -- too little funding, too few resources devoted to good planning, even something as simple as not enough poll workers showing up. It confirmed my view that we should never attribute to partisanship that which can be adequately explained by inadequate resources. Here again, a Democracy Index would help. Policymakers, like voters, have no means of judging whether and where there's a problem, no sense of the consequences of starving election administrators of resources. Reliable, comparative performance data would help.

Third, election administrators should have been able to see the same kinds of information that I saw on Election Day. The information that scrolled across my computer gave me a tantalizing glimpse of how useful a tool data can be for management. There were many, many problems that could have been fixed quickly and easily if election administrators had the type of real-time monitoring capacity that the Obama campaign had. In a book coming out in the spring, The Democracy Index: Why Our Election System is Failing and How to Fix It, I spend a lot of time describing the remarkable uses election administrators have made of the data they have collected. Maricopa County has a real-time trouble-shooting system. Forsyth County, Georgia has precise information on turnout patterns and voter dispersion, something that has allowed it to deploy resources wisely and ensure that every community has equal access to the polls. Maryland has used its electronic poll books to figure out precisely how many poll workers, poll books, and machines it needs at every polling place. The Pew Center on the States has been doing extremely important work identifying "data for democracy" -- the basic information we need if we are serious about how our election system performs. As with the Democracy Index, these efforts should help make the invisible portion of our elections visible and eventually help us create the election system that we deserve.

Heather Gerken

"Prof calls voter fraud charges overblown"

Politico offers this report.

"Coleman vs. Franken: The Rematch"

The Star Tribune offers this report. See also Coleman Camp Says Ritchie is Biased.

"Justices Agree to Hear Case on Anti-Clinton Film"

The NY Times offers this report. See also this LA Times report, and this WaPo report. This audio report from NPR focuses on the Massey case. Howard Bashman has more links.

"Begich lead over Stevens grows"

The latest from Alaska.

An Interesting Dual Role for An Election Law Scholar

Many of my friends who are election law scholars have been involved with one of the presidential campaigns this season in varied roles.

But this one is probably unique:

Spencer Overton, a law professor at George Washington University and expert on campaign finance, raised more than $500,000 for Obama's presidential campaign, according to a database maintained by the government watchdog group Public Citizen. Overton also sat on Obama's national finance committee.

The article notes that Spencer will be serving on on an Obama transition review team looking at the Justice Department. I am very happy to hear that.

"Provisional Ballot Use Increasing"

The Columbus Dispatch offers this report with this accompanying graphic.

"SENATE RECOUNT: Franken sues for lists of voters whose absentee ballots were disqualified"

The latest from Minnesota.

"Vote tally trend favors Begich for Senate"

The latest from Alaska.

Historical Quote of the Day

"Asked at one point by [Judge] Randolph what issue was being discussed in the film, Bopp responded: 'That Hillary Clinton is a European Socialist.' He added that this had 'nothing to do' with whether or not a viewer should vote for Clinton for president because the film does not call for a vote."

--Jim Bopp, January 11, 2008, speaking before the three judge court on the preliminary injunction request in Citizens United. News reports said that the judges laughed in response to the statement.

Breaking News: Supreme Court Agrees to Hear Two Election Law Cases This Term

SCOTUSBlog reports:

The Supreme Court on Friday added five new cases to its decision docket for the current Term, including a test of the constitutionality of a federal campaign finance ban as applied to a critical movie about Sen. Hillary Clinton when she was running for president (Citizens United v. Federal Election Commission, 08-205). The Court also agreed to decide whether the Constitution requires an elected state judge to step aside from deciding a case involving the financial interests of a major campaign donor (Caperton v. A.T. Massey Coal Co., 08-22).

The order list is here. You can find the relevant briefs here.

The grant in Capterton is especially interesting given that it was relisted a number of times. That is often a sign that someone is writing a a dissent from denial of certiorari.

There are still two more important election law cases on deck. NAMUDNO, which the court will almost certainly hear near the end of the term, and Deters, the Ohio petition circulator case, which I believe has a fair shot of being granted.

More Minnesota Cries of Partisanship

This time, from Fox News.

ProPublica notes the intense scrutiny the recount process will face.

Interesting Post-Vote Buying Story

The Lesson: Don't publicly predict God will smite the judge who sentences you.

"Santorums' absentee vote in Penn Hills challenged"

The Pittsburgh Post-Gazette offers this report.

Citizens United Case on Supreme Court's Conference List Today

See here. We are also waiting to hear about the West Virginia judicial recusal case (relisted numerous times) and the Ohio paid petition circulator case (relisted from last conference).

The Court granted an extension of time until Nov. 24 for the SG to file its expected Motion to Dismiss or Affirm in NAMUDNO

"Election Over, Workers Can Break Out the Campaign Buttons"

So reports WaPo's "Federal Diary."

"Transition Team Chock Full of Bundlers"

The Washington Post offers this report.

The Politico on the Prospect of a 60-Seat Senate

Here. My guess is that Franken ends up with Minnesota. I have no idea what will happen in Alaska; the best bet for Republicans is a Stevens win followed by a resignation/plea deal followed by a special election (Senator Palin?). In Georgia, the only polling I've seen has the Republican ahead by three points, but I imagine that Democrats will push hard here as well.

"Put an end to election messes"

The Boston Globe offers this editorial endorsing universal voter registration.

"Prop. 11 support signals voters' mood for reforms"

George Skelton has written this LA Times column.

George asks "what's next?" And his answer is an open primary (really a "top two" primary). I'm a big supporter of the top two primary in California (I was on the legal team when Prop. 62 was on the ballot). But that may be jumping the gun.

Even though there are still a fair number of unprocessed ballots, it looks like Prop. 11 indeed will pass.

Before the election I wondered if there would be a lawsuit against Prop. 11 (possible theories I heard were under section 2 of the Voting Rights Act and a First Amendment challenge). The measure will also be subject to preclearance (I'm guessing before an Obama DOJ). I'd like to hear from others about the prospects at DOJ and the potential for a lawsuit.

Bauer Sees Wertheimer Public Financing Proposal as Constructive

That's progress.

Chipman, Herron, and Lewis on "Residual Votes in the 2008 Minnesota Senate Race"

I look forward to reading this 32-page academic draft, hot off the (virtual) presses. Here is the abstract:

The 2008 United States Senate race in Minnesota is one of the closest electoral contests in recent history: as of this writing, out of over 2.9 million ballots cast only 206 votes separate incumbent Republican Senator Norm Coleman and his Democratic challenger, Al Franken. The Minnesota Senate race is slated to be recounted starting on November 19, 2008, and a key issue in the recount will be the approximately 34 thousand residual votes associated with it. A Senate residual vote is, roughly speaking, the product of a ballot that lacks a recorded Senate vote, and in the Minnesota Senate race there is no doubt that the number of residual votes dwarfs the margin that separates Coleman from Franken. We show using a combination of precinct voting returns from the 2006 and 2008 General Elections that patterns in Senate race residual votes are consistent with, one, the presence of a large number of Democratic-leaning voters, in particular African-American voters, who appear to have deliberately skipped voting in the Coleman-Franken Senate contest and, two, the presence of a smaller number of Democratic-leaning voters who almost certainly intended to cast a vote in the Senate race but for some reason did not do so. Ultimately, the anticipated recount may clarify the relative proportions of intentional versus unintentional residual votes. At present, though, the data available suggest that the recount will uncover many of the former and that, of the latter, a majority will likely prove to be supportive of Franken.

[corrected abstract]

The RNC's Louisiana Coordinated Expenditure Complaint

You can find it here.

"Alaska Senate Race on Hold"

CQ Politics offers this report. Meanwhile, Politico reports: "Stevens has been calling his GOP leaders and other colleagues urging them to hold off, according to GOP sources. In private conversations, Stevens is assuring his fellow Republicans that he will step down if he loses his appeal, but in the meantime, he wants them to hold off on kicking him out of the Republican Conference."

"Election Day in America is record-breaking and mostly smooth"

That's the lead story in the new Electionline Weekly.

"Beyond Red and Blue: 7 Ways to View the Presidential Election Map"

Some cool maps from Scientific American.

Read the Complaint in the New RNC v. FEC Case

You can find it here. von Spakovsky is pleased.

"Franken seeks access to rejected absentee data"

AP offers this report.

"Proposition Overload: California needs to reform its system to cut back on increasingly numerous and costly ballot initiatives."

Bob Stern and Tracy Westen have written this LA Times oped.

"BREAKING: Appeals court nullifies 2007 mayoral election"

Troubles in Terre Haute. The opinion and more at the Indiana Law Blog.

About Those 32 "Lost" Ballots in Minnesota

Not so much.

Chapin: Enjoying the Unexpected - Or, the Virtue of a Victory Lap

Doug Chapin has written the following guest post for my Fixing Election Administration series:

Almost as astounding as how smoothly Election Day 2008 went overall is how quickly everyone seems to have pivoted away to focus on the future of elections in this country. [I can't even claim credit for noticing this; that honor goes to fellow election geek Michael Alvarez.]

Yet, before we race ahead to the next big thing - which looks like it's going to be state legislative debates about early voting and a Congressional debate on registration reform - I would suggest that we may want to take a long look in the rearview mirror.

Quite simply, we need to look back and ask why Election Day 2008 went so well - and why.

Over the years, I have had friendly (and occasionally not-so-friendly) discussions with election officials about the tendency for the media (and by extension, electionline.org) to focus on the negative in its coverage of elections. My response has always been that reporters are interested in the unexpected; building fires and plane crashes get coverage precisely because planes aren't supposed to crash and buildings aren't supposed to burn.

Sometimes, though, the lack of news is news - and I would argue that Election Day 2008 qualifies.

Conventional wisdom in some quarters held that the election system was facing a "meltdown" because of the combination of a system in flux and potentially record turnout. Even those of us who adamantly refused to predict trouble were holding our breath as polls opened on November 4.

But then nothing much happened. While there were problems - names not on registration lists, ballots that couldn't be read - they never rose to the level of systemic electoral breakdown that some had predicted and even congenital optimists like me had feared.

The plane didn't crash. Democracy didn't burn.

I think that's worth investigating.

Thus, before we simply assume that Election Day is behind us and move on, we need to dig more deeply into Election 2008 and find out what went right. Specifically, we need the answers to the following questions and more (which I will not even attempt to answer here but will be following in weeks and months to come):

1. Did the margin in the presidential race mask flaws in the system; i.e., was election offcials' apocryphal "landslide prayer" answered?
   
2. Did the competitive and historic nature of the election make voters, poll workers and election officials focus more intently on their roles (what I've called the "game face" and social scientists call the Hawthorne Effect)?
   
3. Was early voting really successful in getting voters "out of line" on Election Day?
4. Do paper ballots ease polling place congestion by allowing more people to cast ballots at once?
5. Do the number and nature of provisional ballots indicate larger hidden issues with the registration system?
6. Did pre-election controversies about third-party registrations create issues or heighten attention (see #2?)
   
7. Does improved voting information help?
8. What changes were made between the problematic primary season and Election Day and what was their impact?
9. Did we just get lucky? Or was luck merely the residue of design?
   

These questions only scratch the surface of what we need to learn about 2008 ... but I cannot emphasize enough how important it is that we take the time to answer them.

Failures happen for a reason - but sometimes successes do, too.

Either way, we are foolish if we don't stop to ask why.

"The $200 Campaign Finance Fix"

Fred Wertheimer has written this Washington Post oped. The public financing system for our presidential elections is "no longer viable."

"Begich takes lead in latest vote count"

The Anchorage Daily News reports an 814-vote lead over Sen. Stevens, with about 40,000 ballots still to count.

"Obama's Operation May Become the Model of Fundraising"

CQ Politics offers this report.

Voter ID Rules May Matter in an Indiana Race

See here.

More Bauer-Elmendorf

From Bob.

"Tainted Justice"

The NY Times offers this editorial on Caperton v. Massey.

"A Senior Fellow at the Institute of Nonexistence"

An absolute must-read on the dangers of covering the election in the 24-hour news cycle filled with link-happy bloggers.

Sen. Ben Nelson to Chair Rules Committee?

Could be.

"Republican Party To Challenge Campaign Money Laws"

A new challenge to the soft money and coordinated spending provisions of BCRA.

"Presidential Race Not Over in Missouri"

The latest from Missouri.

"Latest tally: Begich leads Stevens by 3 votes"

The latest from Alaska.

"Cavnassing Board Set for Senate Recount"

The latest from Minnesota.

John Nichols: Dysfunctional election process needs to be repaired"

First Todd Rokita and now Tim Robbins.

"That's Two for Me"

The NY Times offers this interesting editorial on prisoners and voting.

Unanimous 4th Circuit Panel Rejects "Speech or Debate Clause" Challenge to Rep. Jefferson Indictment

You can find the opinion here. There's more from CQ Politics.

"Mischief in Minnesota?"

The Wall Street Journal offers this editorial, citing to the questionable analysis of John Lott.

Just Wondering Dept.

Will the Obama Administration take the prudent step of considering recommendations of the Continuity of Government Commission to deal with government continuity in the event of a massive terrorist attack or natural disaster?

It is a sensible thing to do and a gift for future generations.

"Open primaries another path to moderation?"

The Contra Costa Times offers this report.

"Candidates await today's vote count"

The Alaska Daily News offers this report.

"Senate Recount Puts State to the Test"

The Twin Cities Pioneer Press offers this report. The Star-Tribune notes the senate campaigns are lawyering up.

"Conference cuts funding for ACORN"

The Boston Globe offers this report, which begins: "The US Conference of Catholic Bishops is permanently cutting off all funding for ACORN in the wake of an embezzlement scandal and allegations of voter registration fraud and political partisanship."

"New Colorado Panel Will Look At Election Reform"

AP offers this report.

Herron on Lott on Minnesota

Michael Herron, responding to this blog post, writes:

I just read the reference on your blog to the John Lott piece.

He says:

"Indeed, it is probably through the discovery of new votes that Franken has his best shot of picking up new votes. Despite the press pushing a possible replay of election judges divining voters' intentions by>looking at "hanging chads" to see if voters meant to punch a hole, that shouldn't be an issue in Minnesota. The reason is simple: optical scan vote counting machines return ballots to voters if no vote is recorded for a contested race."

Lott is wrong about MN's use of optical scan. My information is from the MN SOS (contact person is Pat; phone number 651 xxx xxxx; date of call 11/10/2008; time approximately 3:12pm eastern voicemail).

I was told by Pat at the MN SOS that MN's machines are programmed to kick out overvotes and blank ballots but that they are not programmed to kick out undervotes (except in the case of a blank ballot, which is a collection of undervotes).

What Happened to the Obama Push for the Deceptive Practices Act?

Following up on this post, the item, along with the rest of the civil rights agenda, has at least temporarily disappeared from the change.gov website.

"Glory for Democrats -- Riding on a Single Vote"

The NY Times on Omaha's electoral college vote.

Two from NPR

Curtis Gans is interviewed in Voter Turnout in Election Falls Short of Record. The network also examines the undecided allocation of Missouri's electoral college votes.

"GOP wants to protect right to vote-- for right people"

Cynthia Tucker has written this oped for the Atlanta Journal-Constitution. See also this AP report.

"What They Don't Want You to Know"

NPR's "Secret Money Project offers this interesting report about Jim Bopp's latest efforts to fight federal campaign finance disclosure laws.

"Ohio election officials consider expanding early voting system"

The Cleveland Plain Deailer offers this report.

"Could Sent Recount Referee's Resume Color the Result?

Katherine Kersten has written this column in the Star-Tribune. As I have said, a silver lining of the dispute over the Coleman-Franken race is that it might convince more Republicans of the need for nonpartisan election administration.

"Emory instructor recalls Obama the law teacher"

This report begins: "When Michael S. Kang teaches election law at Emory University, he tries to emulate the technique of the man who taught him: President-elect Barack Obama."

"Obama team announces new rules on lobbyists"

AP offers this report.

"ELECTION 2008: The Voting Problems Aren't Over"

This post appears at the Am. Law Daily.

Elmendorf: A Reply to Bob Bauer

Chris Elmendorf has written this guest post:

Yesterday, Bob Bauer took issue with my very tentative suggestion of a "recruit the states" model for building public confidence in the electoral process, which I presented as an alternative to new federal statutory mandates for election administration (e.g., Election Day Registration). Bauer's critique runs on two levels: he suggests, first, that "public confidence" is a dubious goal for electoral reform; second, accepting the confidence goal arguendo, he sees no reason to think that state-level experimentation under the aegis of a nonpartisan federal agency (my "recruit the states" model) would be more successful in bolstering public confidence than new national standards for federal elections.

As to the first point, I agree with Bauer that public confidence, somehow understood, is not the only goal worth pursuing in the design of electoral institutions. But I do think the desideratum of broad public consent to the legitimacy of election results--especially among supporters of losing candidates--should be kept in mind when designing election laws and institutions. Indeed, there are both intrinsic (consent-based theories of democracy) and instrumental reasons (consequences of procedural fairness for pro-social behavior) to believe that this is a matter of first importance, though the instrumental argument is more of a working hypothesis than a social-scientific "truth" at the present time.

Bauer's other objection to my suggestion is that it is "not clear why" "the state experimental program stands the superior chance of running [the] gauntlet" of "partisan mischief," as compared to federal statutory fixes. "In this last election cycle," he rightly observes, "the partisan mischief was just as pronounced at the state and local as at the federal level."

The essential advantages of the recruit-the-states approach (relative to federal standardization) are threefold. First, it fosters diversity in election administration, which is a necessary predicate for learning about the still-poorly-understood relationship between election administration and public confidence in the electoral process. Second, it provides incentives for the lawmakers and election administrators who will determine the ground rules of political competition to figure out what the public actually cares about (regards as legitimating) in this domain, and then to act on this understanding. This certainly won't end partisanship in electoral reform, but it should help to yoke partisan ambitions to the public interest, at least at the margin. (State lawmakers who can successfully demonstrate--rather than merely assert--that their preferred reforms will bolster public confidence will be rewarded with federal funding or exemptions to help implement those reforms.) Third, the very act of instituting the "recruit the states" model could serve an important expressive function, instantiating a national commitment to the principle that election procedures should be designed to secure the widest possible consent among the governed. One may hope that a meaningful statement of commitment to this principle would reinforce whatever internal inklings our lawmakers may have that bare partisanship is not an appropriate basis upon which to found electoral reform.

Chris Elmendorf
U.C. Davis School of Law

"Obama likely to escape campaign audit"

Politico offers this very interesting report.

"Hybrid Ads and Public Financing Reform"

Bob Bauer's latest.

"Most Uncounted Ballots Will Be Tallied Wednesday"

The latest from Alaska.

"Woman Who Voted Twice Says She Won't Be Charged"

AP offers this report.

"Still Some Undecided Races, But Obama Gets Electoral Grace Note in Nebraska"

CQ Politics offers this round-up.

The Latest on the Franken-Coleman Vote Counting

The Star-Tribune offers Franken Now Just 206 Votes Behind and A Precount for the Coleman-Franken Recount.

"Racial Gerrymandering is Unnecessary"

Abby Thernstrom and Stephan Thernstrom have written this WSJ oped.

If You Are a Republican and You are Concerned About the Senate Recount in Minnesota...

then ask yourself what would give you greater confidence in the process. Minnesota is arguably one of the strongest states in terms of election administration. So what might help?

Non-partisan election administration (look how Secretary of State races are now more politicized)

National universal voter registration with unique voter identification numbers done by the federal government

Uniform national ballots with clear rules about how to resolve issues related to disputed ballots etc.

These kinds of solutions have been met with some skepticism in the past by some Republicans. But I hope they will take a closer look in light of recent stated skepticism about voter fraud and ballot recounts.

"Reformers Try to Save Campaign Finance"

Politico offers this report.

"Indiana's Deputy Secretary of State Quits"

So reports the Indianapolis Star.

And in Other Close Election News....

Here.

"Alaska's voting turnout puzzling"

The Alaska Daily News offers this post.

"Minnesota Ripe for Election Fraud"

John Lott offers this opinion piece at FOX News.

The claims in this piece are entirely irresponsible. I find nothing out of the ordinary about how the number of ballots are shifting as Minnesota election officials check their totals. Nor should it be surprising if, under clear Minnesota election law, the numbers shift significantly upon a count of the undervotes---as mandated by Minnesota election law to ascertain the intent of the voter.

All that pieces like this do is fan the flames of lack of voter confidence in the electoral process without good empirical support.

"After Citizenship Challenges, Ballots Thrown Out in Georgia"

TPMMuckraker offers this important report.

Nate Silver on the Minnesota Recount and the Odds of Franken Catching Up

See here.

In the Election Law Mailbag

Kevin Johnson, A Handicapped, Not "Sleeping," Giant: The Devastating Impact of the Initiative Process on Latina/O and Immigrant Communities, 96 California Law Review 1259 (2008)

Clifford A. Jones, The Stephen Colbert Problem: The Media Exemption for Corporate Political Advocacy and the "Hail to the Cheese Stephen Colbert Nacho Cheese Doritos 2008 Presidentail Campaign Coverage," 19 University of Florida Journal of Law and Public Policy 295 (2008)

"From tight to tighter: Franken now just 206 votes behind"

The latest from Minnesota.

"L.A. County election czar's to-do list includes reforms"

The LA Times profiles Dean Logan.

Interview on "In the Loop"

I was on Minnesota Public Radio's "In the Loop" on Friday talking about election administration reform. You can listen here, at about 8 minutes into the program.

"Why exactly is the Senate permitted to expel a felon?"

Sandy Levinson offers these thoughts.

"Alaska Race May Not Be Called for 2 Weeks"

Roll Call offers this report. Meanwhile, Republican Senators are wondering how they will handle Sen. Stevens in the lame duck session.

"FEC Subpoenas Donors to 527 Groups to Bolster Its Court Case for Regulation"

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

"Voter registration process is under scrutiny"

The LA Times offers this report.

"Election Reform Can't Wait"

Eliza Newlin Carney's latest column.

"Early voting likely coming to Pa. by 2012"

Good news.

"Election disputes offer new niche for lawyers"

The Columbus Dispatch offers this report.

"Voting in 2008: Lessons Learned"

Tova Wang offers this analysis at Common Cause. It concludes: "The truth is, if this election had been much closer, the outcry over the problems enumerated would be huge. If, for example, the presidential election had hinged on Indiana, where it was extremely close, there would have been microscopic inspection of that state's election system and problems undoubtedly revealed. Litigation would likely have ensued. We dodged that bullet. But that does not mean our great democracy is everything it should be. The effort to make our system one in which every American citizen is able to easily vote and have his vote counted is far from over."

No Ruling on Cert. Petitions in West Va. Judicial Recusal Case or Ohio Petition Circulators Case

Here is today's order list. Given that this will make the fifth relisting of the West Va. case (Caperton v. Massey), it sure is looking like a cert. denial, with a dissent from the denial or cert (or some other opinion with respect to the cert. denial).

"Backers Of Voting Rights Face Split Some in District Don't Want to Settle For Just House Seat"

The Washington Post offers this report.

"Under Obama, Web Would Be the Way"

The Washington Post offers this report, which begins: "Armed with millions of e-mail addresses and a political operation that harnessed the Internet like no campaign before it, Barack Obama will enter the White House with the opportunity to create the first truly 'wired' presidency. Obama aides and allies are preparing a major expansion of the White House communications operation, enabling them to reach out directly to the supporters they have collected over 21 months without having to go through the mainstream media."

"Big Political Donors Just Looking for Favors? Apparently Not."

Shankar Vendatam's latest WaPo column.

Persily and Fougere: A Comparison of the Racial Composition of Support for Democratic Presidential Candidates in 2004 and 2008

Nate Persily and Joshua Fougere have written this guest post for the blog:

Although the body of the extraordinary election we just experienced is still warm, the autopsy of the vote has already begun. Some interpret the election returns as signaling a potential realignment, while others see the vote as an aberration born of unique political circumstances or an outmatched campaign. For those who study voting rights law, this election presents an unprecedented opportunity to examine the correlations between race and vote choice throughout all fifty states. We attempt to begin that conversation here by presenting a rough first cut of the electoral data at the county level and its correlation with the African American population share in selected states.

With all of the caveats one should make as to the available data three days after an election and the problems of analyzing counties of dramatically different sizes, we present the simple bivariate relationships between the total estimated African American population of counties in selected states as of 2007 and the vote share received by both Obama and Kerry in those counties. We use aggregate population, not voting age population or registered voter population, because we have those estimates for 2007 readily available from the Census Bureau. Of course, those data are "late" for the 2004 election and "early" for the 2008 election, but they give us some sense of the correlation between the racial percentages of a county and Obama's share of the vote. As a check on our work, we also present the CNN exit poll data from 2004 and 2008. For the most part, they confirm the patterns in the county level data.

You can read the entire post, including the tables, here.

Foley: Voting Next Time--and in 2020

Ned Foley offers the following guest post in my Fixing Election Administration series:

Election reform should embrace a long-term perspective and include non-partisan administration of the voting process. Meanwhile, eliminating unconscionably long lines at the polls is a short-term imperative, as is the need for more data on which to base long-term reform.

It is too soon after the casting of ballots this year for any definitive pronouncements on exactly what reforms the new Congress should adopt in order to improve the voting process. Many of these ballots still remain to be counted. Although there already are calls for legislation that would revamp voter registration, for example, we are likely to learn much more over the next month about the way voter registration actually worked in 2008.

Several significant elections remain unsettled as of this writing, including the presidential election in Missouri, the U.S. Senate elections in Alaska and Minnesota, Ohio's 15th congressional district (which arguably is "ground zero" for the law of provisional voting), and several other U.S. House races. How these races are resolved is likely to tell us much about the practical significance of various voter registration rules: Election Day Registration (EDR) in Minnesota, compared with Ohio's five-day limited version of early voting EDR, versus Missouri's more traditional model.

Moreover, even in elections that are no longer in dispute, the process of reviewing provisional ballots in different states--as well as the analogous process of evaluating the eligibility of absentee ballots that are disputed for various reasons relating to voter registration--will reveal valuable insights about the accuracy of voter registration lists, the challenge of adopting sound practices to maintain those lists, and the obstacles to voter participation as a consequence of suboptimal administrative practices.

As our Moritz-authored book From Registration to Recounts discussed, voter registration is one part of a larger system of interrelated voting administration rules, which also include voter identification, provisional ballots, polling place challenges to voter eligibility, the recruitment and training of poll workers, and many other components. As we documented, it is necessary to understand each component in the context of the state’s overall "electoral ecosystem." I suspect--although don't yet know because the data are not yet available--that the problems that voters encountered in 2008 concerning the disqualification of both absentee and provisional ballots will tell us something important about administrative practices concerning voter registration (and vice versa).

Having made this cautionary observation about avoiding a rush to judgment on the specific voting reform legislation to put before the 111th Congress, I do think the following observations are not premature:

First, short-term versus long-term. It is worth distinguishing between problems that are imperative to fix before we vote again as a nation, in contrast to currently identifiable problems that nonetheless would benefit from a more long-term solution. One of the lessons of our experience with the Help America Vote Act (HAVA) may be that Congress moved too quickly to replace the wretched punch-card machines with expensive-yet-inadequate touchscreen technology, which subsequently needed to be jettisoned or imperfectly retrofitted. At least on the issue of vote-counting equipment, the next Congress might do well to set up a decade-long process that, starting in 2010, will lead to the use in 2020 of a new voting infrastructure of which our nation truly can be proud.

"2020 Democracy: Developing and Implementing a Vision for our Nation’s Voting Process" we might call this decade-long agenda. Consider it a gift to the children born in 2000, that year of the hanging chad. For the first presidential election in which these first-born citizens of the 21st century can vote, we will bequeath to them a truly state-of-the-art electoral process. If the nation could actually achieve that objective, it would be worth waiting for; and if the 111th Congress sets in motion the process that yields this result, it will deserve the historical credit. (Putting into place the data collection necessary for Heather Gerken's "Democracy Index" would be an important first step in this decade-long agenda.)

Second, the immediate imperative of reducing waiting times to vote. Even if one agrees that Congress should take a long-term approach to many aspects of electoral reform, there is one aspect of the process that cannot wait--and that is the truly unconscionable amount of time that many voters, particularly African-Americans, needed to wait in line this past Tuesday in order to cast their ballots. There are profound non-partisan reasons for all Americans to celebrate the vindication of democracy in our nation that occurred last week, as the world rightly took notice. But in the midst of this well-justified celebration, we should not lose sight of the fact that the historically unprecedented nature of this year's election masks the degree of disenfranchisement that these excessively long lines would have caused in any other election.

Since Tuesday, there have been reports of voters in several states--including Missouri, Pennsylvania, and Virginia--waiting five, six, or seven hours to vote! There was even one CNN report of a Pennsylvania voter waiting 11 hours! Missouri's Secretary of State has expressed the fear that some voters were unable to withstand the excessively long lines in that state, and since the presidential election in Missouri remains undecided, it is conceivable that disenfranchisement caused by the inordinate waiting times may end up being decisive on which candidate won that state. (If so, one shudders to think what would have happened if Missouri's Electoral College voters had been necessary for either candidate to reach 270.)

The consequence of the problem would have been much worse if voters, particularly African-Americans, had been unwilling to endure the unconscionable waiting times in order to vote this year, no matter how long it took. But voting should not be such an ordeal. Congress should set a national standard that no voter should have to wait more than one hour to cast a ballot and then work with states on ways to implement this standard. A change from Election Day to Election Week, at least for presidential elections, would seem a sensible place to start.

This move would differ from "early voting," as currently practiced in many states, where only one location is available for voting in each county prior to Election Day. This year we saw five-hour and longer lines at these single "early voting" locations. The different concept of Election Week, by contrast, would consist of multiple "voting centers" dispersed throughout a county, which would be open twelve hours per day, for seven days. Surely, voters could find a time within their busy schedules to visit one of these vote centers and cast a ballot without having to wait more than one hour. It would be more expensive than our current practice, but this year demonstrates that there is a constitutionally minimum level of expenditure necessary in order to prevent voters from having to suffer unreasonably long lines at polling places.

Bottom line on this point: certainly by 2012, when the United States next votes for President, Congress should have put in place a solution to the long-line problem we saw this year.

Third, rules versus institutions. One truth that this year already confirms is that it is not enough for Congress, or the states, to write new legislation that purports to set the rules for operating the voting process. To be sure, those rules are important, and it is highly desirable that those rules be clear and straightforward, whatever policy judgments they reach concerning the balance between facilitating voter participation and protecting the integrity of the voting process. But even with well-written rules, unexpected issues will emerge, and in this intensely competitive environment candidates will be looking for ways to exploit unforeseen gaps in the legislative scheme. In this situation, the identity of the administrator who implements the legislation is crucial.

We have seen the inevitable problem whenever a state's chief elections officer, charged with implementing the voting rules, is an elected partisan official. This problem is structural, and it exists whether the officer is an elected Democrat or an elected Republican. The problem merely may be one of appearances, rather than reality, but that is enough in the elections business. The dynamic now exists in which the other political party attempts to undermine the credibility and legitimacy of the state's chief elections officer, so that it can win back the position.

This dynamic has been most acute in Ohio, where Republicans have looked for ways to attack Jennifer Brunner's every move (and she has regrettably given them some openings), in an apparent payback for the Democratic attacks on her Republican predecessor, Ken Blackwell. But the same dynamic has occurred to a lesser extent in Minnesota, where Republicans have looked for opportunities to trip up Mark Ritchie in a tit-for-tat response to Democratic criticisms of his predecessor, Mary Kiffmeyer. This childish behavior would be inconsequential except that it erodes public confidence in the fairness and integrity of electoral process. Even worse, the maneuvering makes it even more difficult for local administrators to do their jobs properly, as they endeavor to keep their heads down while the partisan bombshells are hurled back and forth. We'll see, too, whether this dynamic interferes with Ritchie's ability to conduct the impending Minnesota recount in a way that both sides perceive as impartial and fair, even assuming the best of intentions on his part.

It may be difficult for Congress to mandate that for federal elections, including presidential elections, states employ a non-partisan chief elections officer. That issue is one that needs further examination, including an analysis of relevant constitutional considerations. Nonetheless, there will be no truly successful reform of the voting process--whether for 2020 or any other year--unless and until our nation figures out a way to rid itself of this structural defect in our system.

The new Congress thus should not have the attitude, "We're fine with states having elected Secretaries of State running their elections, as long as they are Democrats." Instead, Congress should look for ways creatively to eliminate this institutional problem. Since it won't be easy, even though it is essential, tackling this topic is another reason to set our sights long-term.

Fourth, the ticking time bomb of the Twelfth Amendment. We now have had two presidential elections in which we've escaped another disaster like the one in 2000, and the odds are in our favor that we will have many more escapes until the next disaster hits. But these escapes do not mean that we are safe.

At some point in our nation's future, there will be another incredibly close presidential election, where the winner of the Electoral College depends on the outcome in a single state and the result in that single state depends upon the resolution over a dispute over the counting of ballots for presidential electors there. When that occurs, all the reform of the voting process will not matter--including the institutional reform of non-partisan chief election officers in each state--unless Congress has also reformed the institutional mechanism for resolving this kind of dispute over presidential ballots.

In the aftermath of Bush v. Gore, it is unclear whether as a practical matter the institution that will resolve a future dispute over presidential ballots will be the U.S. Supreme Court again or, instead, Congress according to the arcane and imperfect procedures of the Electoral Count Act, which was adopted in the wake of the crisis of 1876. This institutional uncertainty is unsettling--and undesirable. It is the result of the Twelfth Amendment failing to specify what should happen when this kind of dispute arises, a defect noted presciently by Joseph Story in the 1830s but we have yet to rectify.

While it might not seem the most pressing reform given the odds each year against another meltdown scenario, as a nation we have suffered considerably the two times that this deficiency has mattered: 1876 and 2000. It would be preferable that, whenever this kind of situation happens again, we have already taken the steps to be better equipped with a clear and fair method of resolving this kind of dispute.

Thus, as long as we are itemizing the elements of a state-of-the-art electoral system for 2020, this particular item should be added to the list.

"Fewer Paper Ballots Count"

The Columbus Dispatch offers this report, which begins: "Statistically, the chance of your vote not counting was 2 1/2 times higher in Franklin County if you used a paper ballot instead of voting electronically in this fall's election, a Dispatch analysis shows Critics of paper ballots say that discrepancy represents one of the little-noticed consequences of Ohios new early-voting system, which forces many voters to use paper ballots."

Elmendorf: Two Models for Building Public Confidence in the Electoral Process

Chris Elmendorf has written the following guest post for my Fixing Election Administration series:

The 2008 election season witnessed an escalation in the now-familiar conflict between Democrats and Republicans over "access" versus "integrity" in the voting process. John McCain used the dignified forum of a presidential debate to pronounce that ACORN, a left-leaning group, was "on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy." Several leading academics, including Rick Hasen, Charles Stewart, and Daniel Tokaji, have responded to the ACORN brouhaha by calling for federal legislation that would nationalize voter registration or require the states to adopt Election Day Registration for federal elections. This exemplifies what I shall call the "federal fix" approach to building public confidence in the electoral process: When a controversy arises concerning the states' administration of elections, the federal government should respond by taking over responsibility for matter at issue (here, registering voters) or by setting a nationwide standard that, it is hoped, will put an end to the practice that engendered the controversy (here, third-party voter registration).

I submit that an alternative approach is worth considering, under which the national government would license and reward state innovations rather than, or in addition to, prescribing federal fixes. This alternative--call it the "recruit the states" model--would use a nonpartisan federal agency to distribute funds and/or waive federal election standards ("federal fix" requirements) in response to state petitions. The goal in each case would be to enable election-administration experiments that show promise for building public confidence in the electoral process. (The agency should also fund state programs to implement the lessons learned through these experiments.)

Though much can be said in defense of national voter registration or Election Day Registration, the "federal fix" model has a number of serious limitations. First, we simply don't know very much about the relationship between election administration and the public beliefs about electoral legitimacy. Even well-intentioned federal fixes are therefore at considerable risk of missing their mark. (Compare the Carter-Baker Commission's confident pronouncement that a national photo ID requirement would bolster public confidence in the electoral process, with Stephen Ansolabehere and Nathaniel Persily's subsequent empirical finding that there is essentially no relationship between state voter ID requirements and voters' beliefs about the extent of vote fraud.)

The nascent empirical literature does suggest that poll-worker competence and, to some extent, voting technology, affects voters' confidence that their ballots will be tabulated correctly (and in one study, voter confidence in the electoral process more generally). But "better training for pollworkers" is hardly a compelling draw for the entrepreneurial, credit-seeking Member of Congress. This goal is more likely to be realized through modest interventions by an administrative agency with grantmaking authority and a broad mission to foster public confidence in the electoral process, rather than by statutory mandate.

A second limitation of the federal fix model is the risk that the fix will be seen as a partisan ploy rather than as a sincere effort to improve the fairness and integrity of the electoral process. If the next Congress mandates Election Day Registration, it is likely to happen on a substantially party-line vote and in the teeth of apocalyptic Republican warnings (however baseless) that EDR will result in widespread but hard-to-detect voter fraud. Would this new federal mandate assuage Republican voters' fears about the integrity of the voting process? I doubt it, especially in light of the role of partisan identification and electoral victory (or loss) in structuring perceptions of democratic legitimacy.

The third problem with the federal fix model is that it conduces to rash and ultimately counterproductive reforms. The states' experience over the last eight years with new voting technologies is instructive. Aided and abetted by the federal Help America Vote Act, many states replaced punchcard ballots with electronic voting machines, only to ditch the new electronic machines (in response to fears about hacking) in favor of paper ballots. The churn of voting technology is not only expensive, it also requires voters and pollworkers to continually adapt to new methods of voting, which may well sap public confidence in the electoral process (in light of the effects of pollworker competence and voting-technology "usability" on voter confidence). Let us be grateful that the churn was not further accelerated by the passage of Rep. Holt's bill mandating "paper trails" for electronic voting machines. Paper-trail technology should be allowed to spread gradually (or die off) in response to pilot experiments that shed light on its practicability, security, and impact on voter confidence.

The last difficulty with the federal fix model is that it doesn't adequately reckon with the dynamic nature of the public confidence problem. Mandating EDR or nationalizing voter registration might get ACORN out of the voter-registration business, but the next election cycle will probably bring new assaults on the fairness and integrity of the voting process. This seems inevitable in an era marked by distrust of government, partisan polarization, and (except when the economy is tanking) partisan equipoise. The "recruit the states" approach to building public confidence recognizes this, and tries to create incentives for some political actors to ameliorate public doubts about the integrity of the electoral process even as others seek to exploit them.

The forgoing hardly establishes that the "recruit the states" model is a practicable alternative to federal regulatory fixes. Funding will not be easy to come by; the Election Assistance Commission may not be up to the task of administering such a program; and working out the scope of the agency's waiver authority would no doubt be politically contentious. What I hope to have shown is that the model is worth exploring.

UPDATE: Bob Bauer comments.

If. Sen Feinstein Goes to Chair Intelligence, Sen. Schumer Likely Will Chair the Senate Rules Committee

See here. I expect the Rules Committee to play a major role in consideration of election administration reform issues.

"A Better Vote"

The Washington Post offers this editorial.

"Uncounted Votes May Push Begich Past Stevens"

Nate Silver offers this analysis.

"Florida 2000, meet Minnesota 2008."

Here.

What Goes Around Comes Around Dept.

Indy Star:

Secretary of State Todd Rokita, who oversees Indiana elections, got a new perspective on vote challenges this past week.

Rokita, of course, is an outspoken defender of one of the strictest photo ID laws in the nation. In the weeks leading up to the election, he also recommended filing charges related to bad voter registrations delivered by ACORN, the community activist group.
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Then, a funny thing happened to Rokita on the way to voting:

His own absentee ballot was challenged by precinct poll workers.

According to Marion County election officials, his messily inscribed signature upon checking in to vote -- he signed it "Todd Rokita -- did not match his neat poll book signature of "Theodore Rokita."

So what did poll workers do?

Well, they placed his ballot in a pile of provisional ballots that do not get counted until the Election Board can review the challenges one at a time after Election Day. (The board decided Friday that Rokita's ballot will indeed count in the official final tally.)

"Ohio Elections Chief Calls For Voting Summit"

AP offers this report.

Preliminary Findings of OSCE/ODIHR Observation of American Elections

You can find the very interesting read here [Disclosure: I met with two observers who were in California for the election.]

"Obama wins electoral vote in Nebraska"

I believe this is the first time, at least in modern times, that either Maine or Nebraska (the only two states that currently have a system for splitting electoral votes) will split its electoral votes. [corrected link]

"Third-party voter-registration drives being investigated"

The Virginian-Pilot offers this report.

"Obama raising cash for administration"

Politico offers this report.

Charles Stewart Offers Some Interesting Perspective on the Minnesota Undercount

Here, at Election Updates.

"Tension Escalates as Recount Fluctuates"

The Star Tribune offers this report. And the AP offers Most Minnesota 'Undervotes' Are from Obama Turf. If that's true, the 221-vote margin could well shift in Franken's favor.

"Prop. 11: 'Power Grab a Hard Sell'"

The Sacramento Bee offers this report. A snippet: "More than half of the counties in which registered Democrats exceed Republicans voted in favor of the initiative. Proposition 11 passed in 14 of the Democratic counties, failed in 12, unofficial election results show."

"Push to Expand Voter Rolls and Early Balloting in U.S."

The NY Times offers this front-page report, which begins: "Many of the states that allowed early voting this year experienced few delays on Election Day, and now federal election officials, lawmakers and voting experts say people in every state should have the same privilege. There is also increasing support for broadly expanding voter registration rolls, possibly by having the federal government require the states to make registration automatic for all eligible voters. Supporters say universal registration could reduce registration fraud and the confusion at the polls that results when voters are purged from the rolls."

My piece on universal voter registration referenced in the Times article is here.

Tokaji: Reforming Registration

Dan Tokaji offers this guest post:

On Monday, I identified four problem areas to watch out for on Election Day: 1) lines at the polls, 2) voting equipment, 3) voter registration lists, and 4) provisional and absentee ballots. While machine breakdowns and polling place lines got the lion's share public attention on Election Day, a closer look reveals that voter registration was the election administration issue of 2008. Looking forward, it is imperative that policymakers consider changes to voter registration that would eliminate unnecessary barriers to participation and reduce the need for provisional ballots. Expanding Election Day Registration would be a great place to start.

There are a couple of reasons for the special importance of voter registration this year. One is the massive influx of new voters. The other is a change in the law. The Help America Vote Act of 2002 (HAVA) required every state to implement a statewide voter registration list by 2006. Before that, most states maintained their voter registration lists at the local level. This was the first presidential election in which this major change to our voter registration system was in effect. And like any other change -- such as the implementation of new voting machines and provisional voting in 2004 -- it caused its share of problems.

Especially challenging was the implementation of HAVA's requirement that statewide registration databases be "matched" against information in motor vehicle and social security records. This particular requirement proved problematic, because HAVA provides little clear direction on how this matching is to be done or on what consequences should follow from a failed match. In addition, the process of matching registration records against other government lists turned out to be much more difficult than Congress imagined when it passed HAVA.

Registration matching became a focal point of controversy, partly because of the revelation that some ACORN canvassers had submitted phony voter registration forms rather than doing the work for which they were being paid. There is little evidence that this led to actual voter fraud -- Mickey Mouse's name may have appeared on registration forms, but he didn't show up to vote. Nevertheless, Republicans in Ohio and Wisconsin raised the specter of voter fraud in litigation brought to compel matching by state officials. [Disclosure: I joined voting and civil rights groups on amicus briefs opposing both lawsuits.]

A more pressing concern is that overly restrictive matching and purging practices will exclude eligible voters. As the Brennan Center has documented, data entry errors and other administrative problems can result in erroneous mismatches. Florida's "no match, no vote" policy is probably the worst example. Fortunately, most other states declined to penalize voters for administrative mistakes. In Ohio, more than 200,000 voters who registered this year -- more than one quarter -- did not match. In Wisconsin, four members of the six-person board that runs the state's elections had a mismatch. To remove these mismatched voters from the list or require them to cast provisional ballots would have created serious administrative problems, compounding lines at polling places and creating the risk of eligible citizens' votes being rejected.

Fortunately, Ohio and Wisconsin didn't remove "mismatched" voters from the rolls or make them cast provisional ballots, and the courts wisely declined to order any such relief. Unfortunately, there were still lots of registration problems that required many voters in some states to cast provisional ballots. A large number of provisional ballots is problematic not only because they can result in eligible voter's ballots not being counted, but because they can exacerbate the uncertainty surrounding a close election.

Although the presidential election wasn't close enough to bring provisional ballots into play, there are other still-unresolved contests that illuminate this problems. Most notable are close congressional races in Minnesota and Ohio. In Minnesota, the Democratic candidate for the U.S. Senate Al Franken currently trails Republican incumbent Norm Coleman by a razor-thin margin of just 237 votes out of over 2.8 million cast. In Ohio, Mary Jo Kilroy, the Democratic candidate for the 15th Congressional District, trails Republican Steve Stivers by 146 votes out of more than 260,000 cast (though the margin may be going up due to a just-detected tabulation error).

The vote totals in both these races can be expected to change before there become final -- but substantial swings are especially likely in Ohio. A major difference between these two states is in the use of provisional ballots. Ohio relies very heavily on them. There were over 27,000 cast in Franklin County alone, about half of which are probably in the 15th CD. As I explained in this comment, a large number of provisional ballots tends to increase the margin of litigation, casting uncertainty over the result and making disputes over the outcome more likely. There's a good chance that Kilroy and Stivers will wind up fighting over whether to cast provisional ballots, perhaps using litigation pending in federal court as the vehicle.

On the other hand, Minnesota has Election Day Registration. EDR not only increases turnout -- around 5-10%, according to most studies -- but also eliminates the need for provisional ballots. If a previously registered voter moves or has her name removed from the rolls, she can simply register (or re-register) at the polling place. Minnesota thus reported zero provisional ballots in 2006. Because there are no provisional ballots to fight over, EDR in Minnesota eliminates a major source of contention and potential litigation.

That's one of the reasons why my Moritz colleagues and I ranked Minnesota ranked first and Ohio last, in a study of five midwestern states completed last year. Expanding EDR to other states would help reduce the problems arising from failed matches, since voters could still re-register even if they have been removed from the rolls. While opponents complain that EDR increases the risk of fraud, a report by Lori Minnite found scant evidence of voter fraud in the states that have EDR. Past sessions of Congress have failed to enact legislation that would require EDR in all federal elections. Now is the time for the incoming Congress to reconsider such legislation.

Other possible registration reforms also warrant consideration. One possibility is to move toward a Canadian-style universal voter registration system. This system resulted in 93.1% of eligible citizens in Canada being registered. By contrast, just 67.6% of eligible citizens in the U.S. were registered as of 2006. Having government officials take affirmative responsibility for registration could reduce some of the problems that inevitably occur when private groups like ACORN are left to shoulder the burden of registering people not reached through other means.

Another option worth considering is moving responsibility for registration to the federal government. This might be combined with universal voter registration, as Rick Hasen suggests. A major problem with this reform is developing a federal institution that is competent to execute this responsibility. Given the problems that the U.S. Election Assistance Commission (EAC) has experienced, institutional reform is a necessary prerequisite to federalization of the registration rolls.

Reasonable minds can certainly disagree on what registration reforms are most worthy of adoption. What cannot reasonably be disputed is that this component of our democratic infrastructure is in need of further repairs. The fact that the 2008 presidential election didn't go into overtime shouldn't blind us to that reality.

"Obama campaign played unwitting role in phony polls flier"

Interesting follow-up on one of those "Democrats vote on Wed." flyers.

"Reform Groups Push Revised Proposal To Revamp Presidential Campaign System"

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

"A Blowout? No, but a Clear-Cut Win, for a Change"

The NY Times offers this piece on the Electoral College and the potential for reform. Meanwhile, it looks like for the first time Nebraska's electoral votes will be split, with Obama getting Omaha and McCain getting the rest.

"Some House and Senate Seats May Take Weeks to Resolve"

CQ Politics offers this helpful update.

"Liberal Lawyer's Group Wants Same-Day, Nationalized Voter Registration"

CNS News offers this report on an ACS conference call on election reform.

Franken Deficit Down to 236 Votes

See here.

"Making Elections Work: The Law and The Process After November"

I am very pleased to announce that the Election Law Journal, the UCDC Center, and the AEI-Brookings Election Reform Project are sponsoring a one-day symposium on December 4 in D.C. You can find the save the date flyer and rsvp information here.

Here is the tentative schedule:
Panel 1: Reflections on the two presidential campaigns
9:45 -11:15 am
Daniel Lowenstein, moderator, UCLA School of Law, Election Law Journal
Robert Bauer, General Counsel, Obama Presidential Campaign
Trevor Potter, General Counsel, McCain Presidential Campaign

Panel 2. Campaign Finance
11:30 am - 1:00 pm
Thomas Mann, moderator, Brookings Institution
Anthony Corrado, Colby College
Rick Hasen, Loyola Law School, Election Law Journal
Michael Malbin, Campaign Finance Institute
Michael Toner, Bryan Cave, LLP

Panel 3. Election Administration: Early & Absentee Voting Issues
1:45 - 3:15 pm
Norm Ornstein, moderator, American Enterprise Institute
Edward Foley, Moritz College of Law, Ohio State University
John Fortier, American Enterprise Institute
Paul Gronke, Reed College

Panel 4. Election Administration: Voter Registration & Voter ID Issues
3:30 -- 4:45 pm
Bruce Cain, moderator, UC Washington Center
Doug Chapin, Director of electionline.org
Karin MacDonald, University of California, Berkeley
Michael McDonald, Brookings Institution, George Mason University
Nathaniel Persily, Columbia Law School

More on Alaska Replacement Law, and Why the WSJ Washington Wire Was Right

Following up on this post, an alert reader points me to an Alaska Supreme Court case, State of Alaska v. Trust the People, 113 P.2d 613 (2005). The case involved a pre-election challenge to the initiative that changed the Alaska rules for replacing Senate candidates. In the case, the proponents of the initiative challenged a decision of the state's lieutenant governor to keep the measure off the ballot on grounds it was substantially the same as a law recently passed by the Alaska Legislature. The Alaska Supreme Court held that the lt. governor erred because the initiative and the measure were not substantially the same, because the initiative, unlike the new legislatively-enacted statute, did not provide for any temporary Senate replacement pending a special election. That is, under the initiative the Senate seat remains vacant until the special election is called, and the governor has no power to give the benefit of incumbency to a temporary appointee.

None of this was clear to me by looking at the Alaska Code, because the provision on vacancies remains part of the Code. (The initiative apparently was drafted before the code provision added by the state legislative statute, so the initiative did not call for its repeal.) So in the event Senator Stevens must be replaced, this conflict will have to be resolved, and the courts will have to confront a 17th Amendment argument, at least as to temporary replacements.

"Voters' word may not be last in Minn. Senate race"

AP offers this report.

"Reply to Lindgren on 'Most Corrupt Election'"

Adler responds.

"Reply to Lindgren on 'Most Corrupt Election'

Marty Lederman to Head OLC?

Great idea. I've worked with Marty on a few Supreme Court briefs. I admire his intellect, his writing, and his ability to function on no sleep (I need a lot more sleep than Marty does, to put it in perspective). He is an absolutely terrific lawyer and a wonderful person.

An Interesting Development in Minnesota

Franken's deficit is shrinking. When Coleman led by about 500 votes, "Coleman urged Franken to waive his right to the recount to spare the state the expense (under $90,000) and in the spirit of bringing the two sides together following the particularly bitter campaign. He added that 'I would step back' if similarly trailing." That latter statement could well be put to the test.

A Resurrection of Pres.-Elect Obama's Deceptive Practices Act?

Sure looks like it: "Obama will sign into law his legislation that establishes harsh penalties for those who have engaged in voter fraud and provides voters who have been misinformed with accurate and full information so they can vote."

A Constitutional Argument Against Stevens' Expulsion

Here, at Point of Order.

I believe that some Alaskans likely voted for Sen. Stevens on the theory that he would in fact be expelled, and that Republicans stood a better chance of keeping the seat through expulsion followed by special election than by handing it over to a Democrat for 6 years. If that's the case, then following the will of the voters is trickier than might first appear.

Meanwhile, Sen. McConnell may now be supporting an expulsion delay pending Stevens' expected appeal.

Call for Papers---Election Law in the 2008 Election

Dan Lowenstein just posted the following on the election law listserv:

In 2004, Rick Hasen and I solicited papers on issues arising out of that year's election. The resulting symposium was published in the Election Law Journal in June, 2006. We propose a similar symposium relating to this year's election, though we are hoping we will be able to publish it in our final 2009 issue, scheduled for October.

This is a call for papers for that ELJ symposium. The papers can be on any subject that has arisen in this year's election, including but not limited to the presidential election. Congressional, state and local, and ballot measure elections would all be within the scope of the symposium. Articles may be oriented toward policy or law. Empirical studies bearing on pertinent issues are also welcome. We anticipate that the papers in the symposium will focus on the American election, but would not rule out the possibility of a comparative paper. You can find the Table of Contents for the previous symposium here: http://www.liebertonline.com/toc/elj/5/2.

Papers for the ELJ symposium will go through our usual peer-review process. The deadline for their submission will be April 15, 2009. In order to facilitate our planning of the symposium, we would appreciate your submitting a proposal or abstract by December 15, 2008. You can submit a paper without having submitted the advance proposal, but if we receive more publishable papers than we can publish in the symposium, we will give some preference to authors who submitted an advance proposal. Of course, if you write a paper that would fit into this symposium but do not have it completed by the April 15 deadline, you can submit it in the ordinary course for publication apart from the symposium. If circumstances require, we might extend the deadline and publish the symposium in a later issue, but April 15 stands unless we announce otherwise. Potential authors should feel free to submit queries in advance of submitting their proposals, abstracts, or manuscripts for review.

Articles should be accessible and of interest to government officials, practicing lawyers, journalists, academics from various disciplines including law, political science, public policy, history, and economics, and others with an interest in electoral institutions, law, and administration. Articles should be written in a cogent style, appropriate to the reader groups identified above. Documentation should be provided to the extent necessary, but otherwise articles should not be heavily footnoted. Published articles ordinarily will not exceed 20,000 words, and articles of 15,000 words or less are preferred. We do not require a particular style for references. You may use law school "Blue Book" style, the style manual of the American Political Science Association, or any other style containing necessary bibliographic information and understandable to readers from a variety of professions and disciplinary backgrounds. If the manuscript contains self-identifying references, a redacted version should be sent to facilitate anonymous review.

As many of you know, ELJ has recently begun using an automated system for submission of papers and for peer review. You can access the system here: http://mc.manuscriptcentral.com/electionlaw. If you have not previously used the system you will be required to register. If you have any difficulty with the system, let me and Rick know. We are still struggling with it, but there are a couple of employees of the publisher who respond promptly and helpfully when problems arise.

Just Asking Dept.

If Prop. 11 passes in California, it will have to go through pre-clearance because of 4 covered counties in California. Given that some civil rights organizations said that Prop. 11 will hurt minority interests, how will the Obama Administration's DOJ rule on the request for preclearance?

"Franken says recount is needed; his deficit down to 438"

The Star-Tribune offers this report.

"Obama Win Causes Obsessive Supporters To Realize How Empty Their Lives Are"

The Onion offers this video report.

More from IssueLab on Election 2008

Here.

" A FIRST LOOK AT MONEY IN THE HOUSE AND SENATE ELECTIONS"

The Campaign Finance Institute has this new release.

Bob Bauer on Administration of the Last Election and an Agenda for Reform

Bob's thoughts are worth considering in their own right, but especially so given that he likely has the ear of President-elect Obama on these issues.

TPM, State By State, Looking at Voter Fraud Claims After the Fact

Zachary Roth looks at Indiana, Nevada, Pennsylvania, and Wisconsin.

"Prop 8 Facing Uphill Legal Challenges"

MyFoxLA offers this report, quoting a number of experts skeptical that the measure could be overturned under the California Constitution as an impermissible constitutional "revision." Eugene Volokh offers his thoughts on the issue.

What Will Happen to Senator Stevens' Seat? It is Complicated.

The latest results show Senator Stevens over 3,000 votes ahead. In the event he ekes out a victory (perhaps after a recount), what happens next?

Article I, Section 5 of the U.S. Constitution gives the Senate the power to expel Senator Stevens on a 2/3 vote. The Senate's website notes that 15 members have been expelled in its history, 14 for joining the confederacy. Four members of the Senate have been convicted of crimes; three resigned before being expelled and 1 died. (One of the three who resigned later had his conviction overturned.)

Senate majority leader Harry Reid has said that he will move forward on expulsion, and will not wait for the appellate process. Before the election, a number of Republican Senators, including Sens. McConnell and Ensign, said Stevens should step aside. So expulsion seems likely. On the other hand, Roll Call quotes attorney Stan Brand as saying that if the voters have reelected someone knowing of his conduct, there is a strong presumption against expulsion. He even goes so far as to suggest it raises constitutional problems.

I don't see these constitutional problems; the issue is a political one. Here is how it is explained in a very recent CRS report:

The Senate, in a similar manner as the House of Representatives in relation to its Members, has expressed reticence to exercise the power of expulsion (but not censure) for conduct in a prior Congress when a Senator has been elected or reelected to the Senate after the Member's conviction, when the electorate knew of the misconduct and still sent the Member to the Senate. The apparent reticence of the Senate or House to expel a ember for past misconduct after the Member has been duly elected or reelected by the qualified electors of a state, with knowledge of the Member’s conduct, appears to reflect the deference traditionally paid in our heritage to the popular will and election choice of the people. The authority to expel would thus be used cautiously when the institution of Congress might be seen as usurping or supplanting its own institutional judgment for the judgment of the electorate as to the character or fitness for office of an individual whom the people have chosen to
represent them in Congress.

(footnotes omitted)

If Senator Stevens is expelled or if he resigns after the new Senate session begins, what happens next? There's a bit of a dispute over which rules apply. The old rules (see here) provided for the governor to fill a vacancy and then to call a special election afterwards, if the term would expire in more than 30 months. A controversy over the last Alaskan governor appointing his daughter to a vacant Senate seat led Alaska voters to pass an initiative changing the law. Under the new law, the governor still may appoint a temporary person to the seat, who sits only until a special election is called in 60-90 days after the vacancy occurs. Because Senator Stevens' term would expire in more than 30 months, there's not much difference between these old and new laws, except as to the timing of the special election.

There's a constitutional question under the 17th Amendment whether an initiated change to the means for filling Senate vacancies are constitutional. Vik Amar thinks it is. I'm not so sure (I address a similar, but not identical, issue in this paper).

So, either way, the governor will have the power to fill a vacancy at least for the short time (meaning this Washington Wire post is incorrect at the end). The difference might only be in the timing of the special election. [UPDATE: See this post which shows that this is not quite right.]

Anyway, subject to additional complications I haven't thought of, that's likely how things would go: expulsion, temporary appointment, special election.

'Gov. Schwarzenegger declares win in Proposition 11"

The measure is ahead by about 100,000 votes, with about 1.6 million votes left to count.

What a Recount is Going to Look Like in Minnesota

The fact that these guidelines already exist is crucially important in preserving the fairness of the process.

More from the Star Tribune. I don't think there's any basis for Sen. Coleman to say "the prospect of overturning [the necessary] votes is extremely, extremely, extremely remote." A 475-vote lead out of about 3 million votes cast---my guess is there's a fair chance that a number of undervotes will end up getting counted (though I have no idea how they will break).

"The Shape of Elections to Come"

MSNBC offers this piece on election administration reform.

Allegations of Impropriety in Minnesota Senate Race

I am guessing we will hear more about this in coming days.

"Voting Problems: 'Much Ado About Nothing'"

CBS News offers this report.

Expect Updates on California Ballot Totals from the SOS Friday and Tuesday

Counties must report them to the SOS on Thursday and Monday.

"Minor Party, Independent Presidential Candidates May Have Tipped 4 States"

Richard Winger offers this very interesting post (though the data is somewhat outdated by now). Of course, third party candidates affected the Senate races in Georgia and Minnesota too.

Get Ready to Learn a Lot More About the Difference Between Constitutional Amendments and Revisions In California

I just received a press release via email, which begins:

The American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights filed a writ petition before the California Supreme Court today urging the court to invalidate Proposition 8 if it passes. The petition charges that Proposition 8 is invalid because the initiative process was improperly used in an attempt to undo the constitution's core commitment to equality for everyone by eliminating a fundamental right from just one group-- lesbian and gay Californians. Proposition 8 also improperly attempts to prevent the courts from exercising their essential constitutional role of protecting the equal protection rights of minorities. According to the California Constitution, such radical changes to the organizing principles of state government cannot be made by simple majority vote through the initiative process, but instead must, at a minimum, go through the state legislature first.

The California Constitution itself sets out two ways to alter the document that sets the most basic rules about how state government works. Through the initiative process, voters can make relatively small changes to the constitution. But any measure that would change the underlying principles of the constitution must first be approved by the legislature before being submitted to the voters. That didn’t happen with Proposition 8, and that's why it's invalid.

Woocher on the Ballot Count and the Propositions in California

Fred Woocher, one of the smartest election lawyers I know and an expert on counting and recounting in California, sent the following to the election law listserv (reposted with permission) regarding whether outstanding mail-in and provisional ballots could affect the outcome of Props. 8 or 11:

In answer to your earlier question about the likely fate of Propositions 8 and 11 in California, I agree with others that there are many more still-outstanding votes than the 94.6% figure of precincts accounted-for suggested by the SOS website. However, I don't think there's any doubt that Prop. 8 will pass, principally because LA County -- the county with by far the most still-to-be-counted provisional and late absentee ballots -- voted in favor of the measure, contrary to what many might have expected from a highly Democratic county. (I think the large turnout of church-going African Americans and Latinos is likely the reason here.) My personal guess is that the uncounted ballots will break more against Prop. 8 than for it (many are from students and other younger, new registrants), but not nearly enough to turn the tide.

I think Prop 11 may be a little closer, both because it is currently leading more narrowly and because the recorded vote in LA was indeed tilted somewhat against the measure. But again, I am doubtful that there are enough votes and enough of a "no" vote differential to overcome the existing statewide margin in favor of the measure.

Gronke: Early Voting is Here. Now How Do We Manage It?"

Paul Gronke offers this guest post (and note I've added a new blog category, "Fixing Election Administration," which will allow readers eventually to see all the posts in this series):

The dramatic rise in early voting this election opens up a window of opportunity to have a national dialogue about the meaning of Election Day. It is almost certain that this dialogue will take place in the halls of Congress. In the last session of Congress, several bills were proposed that would mandate no-excuse absentee balloting for all Federal elections, and one of these bills was co-sponsored by Senator Hillary Clinton.

Under future legislation, I hope they will consider options to standardize availability and standardize reporting for early voting, because early voting results have now become part and parcel of the pre-election reporting.

Options should be considered such as standardized periods for early voting, equitable access to early voting for all citizens, and mandatory reporting of early voting returns. While flexibility is often necessary so that states and counties can adapt voting procedures to local conditions, there is no reason that a voters in one county can cast an early ballot at many locations while citizens in neighboring counties have access to just a single location. And it is misleading to the public to have early voting returns available on a scattershot basis.

Finally, while it should not be part of Federal legislation, the major news outlets need to revisit the 1980 accord, considering whether it early voting exit poll results should be withheld, as we now withhold Election Day projections, until the polls close on the West Coast.

Provisionals Could Widen Obama Lead in North Carolina

See here.

An election administration thought: now that the Obama campaign has turned traditionally red states into battleground states (think North Carolina, Indiana and Montana in 2012), it multiplies the places where there could be an election meltdown in the case of a razor-thin electoral college election.

Revised Version of My Paper on Presidential Primary Fundraising is Now Available

You can again download More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates. I had taken the paper down for a bit as I fixed a few errors regarding the small donor data.

"Races Yet to Be Called"

This is a handy snapshot of where we are right now with close federal races. On the California front, Prop. 11 is leading, but with an unknown (and likely large) number of mail-in ballots and provisional ballots to consider, the race remains too close to call.

"Obama to take Internet army to Washington"

McClatchy offers this report.

More Insightful Political Analysis from The Onion

Here: "Although polls going into the final weeks of October showed Sen. Obama in the lead, it remained unclear whether the failing economy, dilapidated housing market, crumbling national infrastructure, health care crisis, energy crisis, and five-year-long disastrous war in Iraq had made the nation crappy enough to rise above 300 years of racial prejudice and make lasting change."

"Alaskan Sunlight and Disclosure"

Ciara Torres-Spelliscy has written this post on the Brennan Center blog.

A Fight Over Provisional Ballots for the Missouri Electoral Votes?

Could be. I kind of hope so, given that the presidency is at stake. Maybe it will convince Congress that HAVA needs fixing.

Fixing Election Administration: The Way Forward

Readers of this blog have heard me go on ad nauseum about changes that need to be made to our system of election administration; my most recent pieces are this Findlaw piece and this Slate column.

It strikes me we really dodged a bullet thanks to the Obama rout. Just imagine what today would be like if the presidential election results hinged on the outcome in Missouri or North Carolina or even Indiana.

I have asked a number of leading academics who write in the area of election administration to send in guest posts to this blog on the topic of "Fixing Election Administration: The Way Forward." I will put up posts as I receive them, and I expect this will run about a week or so. I'll post replies if guest bloggers want to comment on each other's posts. I don't have the list in front of me of who is participating, but from memory I think I have commitments from Doug Chapin, Guy Charles, Chris Elmendorf, Ned Foley, Heather Gerken, Paul Gronke, Nate Persily, Rick Pildes, and Dan Tokaji. (I'll update this list with additions, deletions and corrections: I am still waiting to hear from a few people.)

I hope this is a useful exercise. I'm looking forward to hearing what they have to say.

The Challenge for the Left Blogosphere---and An Opportunity for the Right

The phenomenal success of left-leaning blogs, including TPM, Daily Kos, and the Huffington Post, is no doubt attributable in large part to the dissatisfaction and passion felt by Democrats surrounding the Bush presidency. The challenge for these sites is going to be to keep the passion and interest up during an Obama presidency. It will be interesting to watch.

I expect that the right side of the blogosphere will grow during the Obama presidency, becoming an especially potent force in shaping who the Republicans will choose in 2012.

It is very interesting how the partisan press has been revived thanks to the Internet. But it works best alongside non-partisan press, as both keep the other honest.

The Campaign Power of a Two-Letter Text

Back on August 12, I sent a two-letter text to the Obama campaign. The text to 62262 said "VP," and I signed up to be "one of the first" to get the word as to who President-elect Obama would be choosing for his vice president. I gave no money to the campaign and sent no other messages to the campaign.

I received 11 text messages over the next three months, inviting me to volunteer, meet other people, watch the debate and vote. (I never did get the message as to who the VP would be, but I managed to find that out from other sources.) The only request for money I received was on 9/1, asking me to contribute $5 to the Red Cross for hurricane relief.

I can only imagine what people who actually engaged with the campaign actually received. Outreach is much of the story of the 2008 election, and it helps explain the Obama success in the formerly red states.

Right on the Money?-- In Part

Back on October 28, I made the following prediction at Politico's "Arena:"

Popular vote percentages: Obama 52, McCain 46
Electoral vote: Obama 364, McCain 174

If Missouri breaks for McCain and North Carolina for Obama, as it currently looks, both the popular vote and electoral college predictions will be right on the money.

However, I also predicted that the biggest surprise would be that Obama carried Missouri (I'd say the biggest surprise turned out to be Indiana) and that the Senate would be 58-42. The outcome is not yet clear, but 58 seems 1 or 2 too high on the Democratic side.

Lindgren Responds on His Corruption Point

Following up on this post, after being called out by his Volokh co-bloggers Jonathan Adler and Orin Kerr, Jim Lindgren responds here. I hope to have time later to respond to Jim. As I said earlier, I'm really disappointed because I think Jim's a very smart guy.

"Malfunctioning Machines, Ballot Glitches, Election-Law Litigation -- and a Busy Day for Lawyers"

The National Law Journal offers this report.

"2008 campaign costliest in U.S. history"

Jeanne Cummings reports for Politico. See also this report from Canada.com.

"Minnesota Under the Microscope"

Ned Foley has this must-read post on the likely recount in the Minnesota Senate race.

WaPo Review of Election Day Administration Issues

Here.

"First $5 Billion Federal Election Campaign Prompts Questions on Possible New Reforms"

BNA Money & Politics Report offers this report.

Crotchety Spoilsport Featured in More Favorable Light

See here.

Anaylst Cries Over Messing Up Presidential Prediction

See here.

I'm Going Home: Election Administrator's Prayer Apparently Answered

The networks are now calling Ohio for Sen. Obama, as well as New Mexico. And Florida looks good for Sen. Obama as well.

I'll blog more from home if there are additional election administration issues tonight.

Thanks to all of those election administrators who have put in long hours to get us to tonight.

It feels like quite an historic moment.

Just in Case It Comes Down to Ohio...

Moritz reports: "This evening, federal district court judge Algenon Marbley has granted Ohio Secretary of State Jennifer Brunner's motion to consolidate the case of Ohio Republican Party v. Brunner (ORP), filed last month and amended this morning, with the case of Northeast Ohio Coalition for the Homeless v. Blackwell (NEOCH), filed two years ago. In an oral ruling from the bench, Judge Marbley noted that the as yet unresolved claims in each case seek uniformity in the processes for counting ballots, and that the two cases share common claims of vote dilution and violations of the equal protection clause. A written opinion is expected to follow."

"In Columbus, Ohio, an Honest Mistake Was Made"

See this letter to the editor in the New York Times.

All Eyes Now on Virginia Results

See here. At this point, with about half the vote counted, about 1% of votes are going to third party candidates.

"Judge denies vote-counting suit vs. Philly"

AP offers this report, which begins: "- A Philadelphia judge has denied a request by voter rights groups who wanted to force the city to count emergency paper ballots soon after the polls close."

I don't think we'll need those emergency ballots counted to know the results from that state.

"Shays' camp is looking into alleged voter fraud in Bridgeport"

See here.

Tom DeLay, in An Oped in Tomorrow's Washington Times, Seems to Call It For Obama, and Blame a Shadow Democratic Party

See here. A snippet:

Liberalism's new and impressive network of organizations -- especially fund-raising, grassroots mobilization, and communications -- has left in the dust anything conservatives have ever put together. Organizations like America Votes and ACORN are so closely tied to Democrat politics that they might as well be arms of the party apparatus. The George Soros-funded Shadow Party of organizations run by former Clinton administration officials and liberal leaders -- the Center for American Progress, the Thunder Road Group, MoveOn.org, Media Matters, etc. -- has created a second left-leaning party free from restrictions imposed by official regulations -- including McCain-Feingold.

"Is Free Coffee Against the Law?"

Slate offers this Explainer.

This is Interesting

A computer forensics company has issued this press release, which begins: "Forensicon, Inc., a Chicago-based computer forensics company, was contacted last Thursday by a security firm lining up vendors to assist the Republican National Committee with consulting related to potential allegations of computerized voter fraud. It has been widely reported that electronic voting machines in many states are vulnerable to hacking by anyone with the right equipment and a few minutes' access to the voting machine."

UPDATE: The RNC confirms.

What is the "Maverick" and "Silver Bullet?"

Inquiring minds want to know.
UPDATE: On the other hand, maybe it was better not knowing.

"Election Day Irregularities in Battleground States"

The McCain campaign has issued this press release.

When Will Pa. Emergency Ballots Be Counted?

I just received a press release via email which begins: "Lawyers for the NAACP-Philadelphia Branch and its member-voters are filing an emergency lawsuit against Philadelphia County this afternoon, seeking a court ruling requiring county election officials to count emergency paper ballots cast today at the close of polls. Despite orders from the Secretary of State, election officials have stated they do not plan to count these emergency ballots until Friday."

"Glitches, machine breakdowns hamper voting in 5 states"

McClatchy offers this report.

Let's Hope It's Not Close in Virginia

Moritz: "A hand written minute entry has been entered by Judge Williams on the McCain UOCAVA case. An order will be issued at 5 p.m. today with both sides having an opportunity to reply. A hearing will be held on November 10th. It appears that Judge Williams is preserving the option of accepting late military ballots until a hearing can be held on this matter on November 10th. There is no final decision in this case at this time."

I earlier expressed skepticism about this case, seeing standing and laches issues.

"At the Polls: Lines and Lawsuits"

The NY Times Caucus Blog is periodically updating this post.

The Washington Post is following issues in Virginia.

Slate is tracking here.

And don't forget Dan Tokaji's live blogging.

MORE: Election Updates too!

"Easily the Most Corrupt Election" in Jim Lindgren's Lifetime?

See this post at Volokh. Jim and I used to be colleagues at Chicago-Kent. I like him and respect him a great deal. But I was very disappointed with this post. Here's a message I sent to Jim (have not heard any response yet):'

There's really no credible evidence that voter registration fraud leads to actual election fraud, certainly not in any numbers that could affect the outcome of the presidential race (see http://www.slate.com/id/2166589/), and linking to a Glenn Reynolds column doesn't make it so. And if we are serious about combating voter registration fraud, how about endorsing universal voter registration conducted by the federal government (see http://www.slate.com/id/2203138/)?

"Poll problems and poll problem spin"

Ben Smith on the campaigns' takes on election administration today.

Excessive Use of Provisional Ballots in Hamilton County, Ohio?

CNN reports.

Testy in Indiana

See here.

"Four Sub-Categories of Uncounted Ballots"

In case the election is close (I'm not betting on it), Ned Foley offers a primer on the types of uncounted ballots that may be in play.

National Law Journal Interview with Ned Foley and Me on Dealing with Election 2008

Here. Also, you can hear me and Doug Lewis on Airtalk talking about universal voter registration and possible election administration changes for 2012.

"Election Watchers Report Problems Across Virginia"

From a WaPo Virginia politics blog.

My Universal Voter Registration Argument is Getting Some Play

See Ygelsias and Kevin Drum.

But given great Republican concerns voiced about the potential for election fraud from voter registration fraud, I'm waiting to hear from some right leaning voices if they agree as well.

Forum Shopping in the Ohio Election Day Litigation?

Could be.

So Far, Lots of Lines, But No Major Voting Problems Reported

That's very good news.

Sequoia Voting Machine Beats Obama, McCain at Polls

The Onion reports on the stunning upset.

Amended Complaint in Ohio Republican Party v. Brunner Suit

Moritz reports: "The Ohio Republican Party has amended its lawsuit against Ohio Secretary of State Jennifer Brunner today in federal court in Columbus. The amended complaint claims that Ohio Secretary of State Brunner has not done enough to ensure that provisional ballots are counted uniformly, and also includes a new claim of 'vote dilution' based on facts previously alleged."

Rob Richie NY Times Letter to the Editor on the Electoral College

See here.

"Milwaukee Puts a Vote-Fraud Cop Out of Business"

John Fund's latest.

Republicans Are Claiming They Are Not Getting Access as Election Observers in Some Philly Precincts

See here.

Polling Place Blogging

It is a partly rainy day in Los Angeles, but the line at the polling place is longer than I have ever experienced as a voter--about 50 people ahead of me when I arrived as the polls opened at 7.

People are cheerful. No doubt they are contemplating the free coffee, donut, ice cream and sex toys that await them.

UPDATE: It took me about 35 minutes to get to vote. As I drove from the polling place, I saw lines out the door at various precincts that I've passed. I've never seen anything like it, especially not in a safe state like California. It does have the feel of an historic election.

There were, however, lines out the door at Starbucks as well.

Polling Place Blogging

It is a partly rainy day in Los Angeles, but the line at the polling place is longer than I have ever experienced as a voter--about 50 people ahead of me when I arrived as the polls opened at 7.

People are cheerful. No doubt they are contemplating the free coffee, donut, ice cream and sex toys that await them.

"Electing the President in 2012: Three Predictions About How the Rules Might Differ Next Time Around"

My newest Findlaw column is now available. It begins:

Soon the television networks will make their projections, one of the candidates will make a concession speech, and the armies of lawyers who were activated for Election 2008 will be sent back to their barracks -- er, offices. So it is the perfect time to start thinking about Election 2012.

We know that election law affects who gets elected and how, for it governs questions ranging from how presidential nominees are chosen, to the fundraising rules, to the rules for the counting and casting of ballots. Though we don't know for sure how the rules for the 2012 presidential election will differ from the 2008 rules, here are three predictions about how the rules may change for 2012, and what that means for the next presidential election.

My three predictions relate to a decreased use of caucuses, a stronger role for outside money, and (hopefully) some federally-mandated improvements in election administration.

In the Calm Before the Storm, A Tremendous Thank You

This has been (and continues to be) a wild ride. Election 2008 raised many interesting and difficult election law issues. I have done my best to track them and provide some perspective. But there is so much going on that there's no way I could keep up on everything going on by myself.

So this is a thank you to all of you who have sent me links, tips, leads, and especially corrections. I have heard from fellow election lawyers, academics, election officials, congressional staffers, journalists, activists, and members of the public. Even when we don't share the same political opinions or outlook, you have each been generous with your time and your thoughts. Sometimes those of you who send me items do so off the record; many times you do not. I generally don't thank people by name for their tips, in part because I am never sure whether the person sharing thoughts intended for me to do so.

In any case, I know that whatever value this blog has to the public and the profession has been greatly enhanced by the (often frank) messages I've received from many of you.

And now on to the main event...

On Airtalk Tuesday with Doug Lewis

You should be able to listen here at 11 am Pacific (what else are you going to be doing while you wait for leaked exit polls?). I'm guessing that Doug Lewis won't agree with some of my reform proposals.

"Voter groups Unleash Lawyer Army"

Legal Times offers this report.

"ELECTION 2008: ACORN Lawyer Says Nuts to You"

This post appears at the Am Law Daily.

" A New Absentee Voting Directive in Ohio"

Dan Tokaji blogs.

"Paid GOP workers say they misled Wisconsin voters"

AP offers this report, which begins: "Four employees hired by a temporary staffing agency to encourage absentee voting for Sen. John McCain in Wisconsin say they were instructed to tell people they were Republican volunteers."

"Networks May Call Race Before Voting is Complete"

The NY Times offers this report.

Bonus Quote of the Day

"The great impact that this election will have for the future is that it killed public financing for all time...That means the next Republican presidential campaign, hopefully a re-election for John McCain, will need to be a billion-dollar affair to challenge what the Democrats have accomplished with the use of the Internet and viral marketing to communicate and raise money."

--Steve Schmit, in Tuesday's New York Times

"Why are we releasing exit poll data now?"

Paul Gronke has an interesting post at Election Updates. Actually, there's a lot of great stuff there. And Charles Stewart has begun blogging there too. Be sure to check it often on Tuesday. I will.

"Virginia NAACP says it's ready to go back to court"

Moritz notes: "After losing its request for relief this afternoon, according to this report in the Washington Post, the Virginia NAACP announced that it is prepared to go back to court tomorrow (Election Day) if lines at the polls are too long. Presumably, it would renew its request, made previously in its pending case, for the court to order emergency back-up paper ballots and/or an extension of polling hours. Presumably, this statement means that the NAACP has decided not to attempt any appeal of today's ruling in the Fourth Circuit."

Ron Michaelson Responds to ProPublica Report

Yesterday I linked to this ProPublica report of an interview with McCain legal team advisor Ron Michaelson. Michaelson has now posted this letter to the editor, which states that the ProPublica reporter "made only selective use of [his] quotes to distort [his] responses."

Breaking News: Starbucks and Krispy Kreme Cave

Free coffee and donuts for everyone!

A Few More Thoughts on the New Virginia Lawsuit

Following up on this post, I've now had a chance to read the complaint and I think there's a strong argument that because of the long delay the suit could well be barred by laches.

More fundamentally, the suit under UOCAVA may be barred for the same reason the Ohio mismatch case failed at the Supreme Court-- there's no private right of action: "42 USC Sec. 1973ff-4 Enforcement: The Attorney General may bring a civil action in an appropriate district court for such declaratory or injunctive relief as may be necessary to carry out this subchapter." The McCain campaign likely doesn't have standing to bring this suit; only DOJ does (and don't count them out!).

I see this as the politics of the situation, this is the final (?) Hail Mary of the McCain campaign. The suit wants to require Virginia to wait 10 days for additional military ballots (to November 14) before certifying federal election results in Virginia, which could be very important only if the race is very close and turns on Virginia. Of course, election law aficionados remember the role military ballots played in the results of election 2000. The must-read academic article on this subject is: Diane Mazur, The Bullying of America: A Cautionary Tale about Military Voting and Civil-Military Relations, 4 Election Law Journal 105 (2005).

"Starbucks Free Java Violates Election Law, State Says (Update1)"

Bloomberg offers this report, which raises the issue under state law.

I believe this violates federal law as well, as I've blogged. Gerry Hebert writes to say that the federal election prosecution guidelines would not apply to commercial inducements: "p. 47-48 of the Federal Proecution Manual makes clear that the purpose of the federal vote buying statute (42 USC 1973i(c)) is to guard against exposing the federal election to potential corruption." I think the danger here is of offers being made for turnout only in certain areas, or among certain populations, that can be inducements which skew the vote.

So while Starbucks and others are motivated by civic virtue (if not commercial promotion), others may use payments for turnout for more political purposes.

"Update: No charges in fake VA flyer case"

CNN offers this report. A snippet: "The Virginia State Police said in a statement that they had determined the flyer had not been created in order to deceive voters. 'The flyer has been evaluated as an 'office joke' and was not intended as a means of a misinformation campaign targeting registered voters,' they said. The department noted, however, that circulating incorrect information to voters is against the law in Virginia."

I guess I'm a crotchety spoilsport, but I don't find jokes about voter suppression all that funny.

"Court leaves NC campaign finance law untouched"

AP offers this report on Duke v. Leake.

Jim Morin Cartoon on the ACORN Controversy

See here.

"Judge Refuses Last-Minute Election Changes in Va."

The Washington Post offers this report, which begins: "Hours before the polls open, a federal judge Monday refused to order any last-minute changes to Virginia's voting procedures in response to allegations by the NAACP that the state is not prepared to handle the predicted historic voter turnout in Tuesday's election. But U.S. District Judge Richard L. Williams will consider Tuesday a separate request by Republican presidential nominee John McCain to allow overseas absentee ballots an extra 10 days to arrive in Virginia. " See also this report.

The new McCain complaint about military voters is here.

Indiana Supreme Court in Marion County Absentee Ballot Case Reinstates Trial Court Order After COA Had Reversed It

In the two hours I went to class, the Court of Appeals lifted the stay and the Indiana Supreme Court, on a 5-0 vote (with two interesting concurring opinions) reinstated the stay. Bottom line: Marion County must follow the Indiana Election Day handbook for handling certain absentee ballots first as provisional ballots, but the Justices believe few ballots will have a problem being accepted for counting.

UPDATE and CORRECTION: In my haste to get this post up quickly, I misstated what happened in the Indiana courts. In fact, the court of appeals had granted the stay of the trial court's injunction requested by the Marion county Board, but then the Supreme Court transferred the case to itself and dissolved the stay, leaving the injunction in place and requiring the absentees to be treated as provisional ballots and not counted immediately. Thanks to a sharp reader for bringing this to my attention.

"McCain sues to force Va. to count military ballots"

AP offers this report. Why did this suit have to wait until the eve of the election?

I am off to class. Here is the latest Moritz litigation update. Back with more later.

UPDATE: I offer some more thoughts here.

"Pennsylvania officials fear electoral flood tomorrow"

Ned asks: "if a polling place has only 50% of the voting machines that it arguably should have to handle the level of anticipated turnout, is that the same for Fourteenth Amendment purposes under last week's ruling as a polling place that allocated the correct number of machines but 50% have become inoperable?" It is a potential argument to use those emergency ballots even if all the machines are working.

Prop. 11 Tanking

See here.

I'm thinking we won't know the results on the Prop. 8 gay marriage measure on election night; it could well depend upon the counting of the absentee and provisional ballots. I'm guessing people will be impatient, but the reality is that in a very close election results are not always immediately available.

"Obama Lawyers Defend 'Vote Fraud' Efforts"

Very interesting article (with a terrible and misleading title) in the Washington Independent.

"Voter Groups Unleashing Lawyer Army"

This article appears in Legal Times.

"CRP Files Federal Complaint Against Barack Obama, Obama Campaign, Obama Victory Fund"

The California Republican Party has issued this press release, with the subhead: "Complaint concerns Obama campaign unlawfully hiding its interaction with ACORN, using campaign funds for personal travel, and excessive and illegal corporate contributions."

You Can Now Listen to My Brian Lehrer Interview

Here.

"Federal Judge to Hear Va. Election Suit Today"

The Washington Post offers this very important report. "State officials are asking voters to bring folding chairs and umbrellas to the polls Tuesday." Oy.

"Mail-ins May Slow Results"

The Denver Post offers this report.

Plenty of Ballots in LA, but Try to Vote in the Middle of the Day

Amid reports of people waiting over the weekend up to six hours to cast a ballot in the "battleground" county of Los Angeles (just kidding on that battleground part), the LA County registrar has assured that there will be plenty of ballots, but recommends voting between 9 and 4 (polls are open in L.A. 7 am to 8 pm). I'm planning to be at my polling place right at 7. If blogging is delayed tomorrow morning, you will know what I'm doing.

Also, the LA Registrar, Dean Logan, sends along the following statistics: "As of today, we have 613,622 voted vote-by-mail ballots returned, which equates to a voter turnout of more than 14% already in house; In 2004, the number of inactive voters who voted, thus 'reactivating' their registrations was approximately 14,000 countywide."

Marion County Case to Court of Appeal, or Perhaps Directly to State Supreme Court

The Indiana Law Blog has the latest.

As I recently asked about a Democratic lawsuit in Florida, why did Republicans wait so long to bring this suit? Was the Marion County policy only recently announced or discovered?

"Van Hollen Calls For Voter Checks"

AP offers this report. More from TPM.

Upcoming Symposium Pieces, Just in Time for Election Day

The William & Mary Bill of Rights Journal has an upcoming symposium issue this year, entitled "How We Vote." Drafts of two of the pieces are on SSRN.

Daniel P. Tokaji, Voter Registration and Election Reform

Christopher S. Elmendorf & Edward B. Foley, Gatekeeping vs. Balancing in the Constitutional Law of Elections: Methodological Uncertainty on the High Court.

Ruth Colker's Voting Odyssey

Law Professor Ruth Colker describes her kafkaesque experience. More signs of our pathetic and dysfunctional decentralized and non-uniform election administration system.

From Starbucks to Sex Toys

Everyone is breaking federal law by paying people for turning out to vote. People should get their free sex toys whether they voted or not. It is the American way.

Quote of the Day

"It's important that voting rights experts, election officials, and policymakers take a long hard look at HAVA, to assess what worked well and what didn't. It may or may not be necessary to amend federal law. What clearly is necessary, however, is that the states clarify their rules on provisional voting, take steps to reduce long lines at the polling place, and replace unreliable voting equipment. "

Dan Tokaji, The 2008 Election: Could It Be A Repeat of 2000? The Legal Problems that Still Persist, Findlaw, Nov. 30, 2004

My Findlaw column tomorrow will be looking ahead to 2012. Maybe I should have just used Dan's 2004 column.

Dan will be liveblogging at Moritz. I'll be doing so here, and I'm scheduled to be on AIRTALK Tuesday at 11 am Pacific, with Doug Lewis, talking about election administration issues.

Cert. Denied in Duke v. Leake; No Ruling Yet in Capterton v. Massey

See here. Duke v. Leake, the public financing judicial elections case, was on SCOTUSBlog's "petitions to watch" list. I thought a GVR was possible.

"Sequoia Voting Systems Failed to Deliver 18,000 Absentee Ballots to Colorado County"

Wired offers this report.

"The State Of The Ballot Fight In Battleground States"

Eliza's latest.

"VICTORY OF THE VOTING RIGHTS GROUPS"

Ezra Klein's post at TAPPED begins: "One of the underreported stories this cycle is the unprecedented success of voting rights groups in defending the right to vote and preventing states from implementing illegal purges based on flawed databases."

Unfortunately, given the ambiguities of HAVA, some of these purges were perfectly legal, though ill-conceived given the lack of confidence in the quality of the data put into records by government officials.

"Get ready for a very long Tuesday night. Which could last until Friday."

The latest from Georgia.

"Courts, lawyers expect busy day; Election lawsuits play growing role"

The Cincinnati Enquirer offers this report.

"Officials confident Ohio voters won't see goofs like in '04"

I'm glad someone is confident.

Scheduled to Be on the Brian Lehrer Show in NYC in a Few Minutes

You can listen here.

Rachel Maddow on Long Lines as a Poll Tax

Watch here.

"Both sides target voter fraud, abuse; army of lawyers on the go"

The NY Daily News offers this report.

"Dead People Voting Throughout Florida"

See here. I'm skeptical this is the result of fraud and not election worker, or voter, error, as seems to be the usual case when these things are investigated.

"Dems' Firewall: Sec. of State Offices"

Politico offers this report.

"What Happens to Public Financing, When Obama Thrived Without It?"

The NY Times offers this report.

"Voting Experts Say High Turnout May Add to Problems at the Polls"

The NY Times offers this report.

McCain Campaign's Rick Davis on Voter Suppression, Voter Fraud, and Potential Post-Election Litigation on Voter Fraud Grounds

Scroll down on this post to watch the video. Davis says Common Cause "causes problems" but praises them as much better than ACORN. Davis says that the campaign "absolutely" will go to court if something has "gone down wrong" in any state in terms of voter fraud problems.

"Tracking down election-law violators can be difficult"

AP offers this report.

"Legislators Using Law As Shield In Probes"

The Washington Post offers this front-page article on the Speech or Debate Clause.

"Civil rights group renews Va. election lawsuit"

AP offers this report, which begins: "The NAACP on Friday resumed efforts to force Virginia to put more voting machines in minority polling places, setting up a court hearing 15 hours before voters head to polls in the battleground state." See also this LA Times story.

A more general point, as we get close to election day, we should start thinking about the rules for election day challenges to keep polls open longer. A good place to start is with Ned Foley's three part series on the topic (Part 1; Part 2; Part 3.)

Ned's thoughts on 3 things to watch for on election day is here.

I agree with Ned. My number one concern for election day is demand outstripping supply, especially in Pennsylvania, which has no early voting, and Virginia. (And these states could matter for an early read on Tuesday's results.) To see the expected demand, check out the latest early voting numbers (rounded): Florida: 3.8 million; Colorado, 1.5 million; Georgia, 2 million; California 3.3 million; North Carolina, 2.7 million. Tennessee, 1.5 million; Texas, 3.1 million. Of course, some of this voting takes the pressure off polling places on election day in those states with early voting. But it shows what we should expect on election day.

"Some Ohio voters receive multiple absentee ballots"

AP offers this report.

"McCain Camp Can't Give Example Of Registration Fraud Leading To Voter Fraud"

TPMMuckraker offers this report, quoting this must-read ProPublica report.

"First Let's Reserve All the Lawyers"

Politico offers this report.

Et tu, Starbucks?

Starbucks is arguablybreaking federal law (and not, as the article suggests, California state law) by offering free coffee to voters on election day.

Further crotchety spoilsport sayeth not.

"Will this Election Be Stolen?"

Reflections at WSJ from Mark Crispin Miller and Hans von Spakovsky.

"Judge orders Colorado to stop purging voter rolls"

AP offers this report.

Should It Be Easier to Qualify Referenda But Harder to Qualify Initiatives for the California Ballot

That's what Joe Mathews argues in today's Sacramento Bee. Through that same link, you can see three reactions to Joe's article including mine, Make Referenda Easier to Pass--But Don't Make Initiatives Harder.

"Chaos Looms Over Pennsylvania Vote"

American News Project offers this report.

"Fight over absentee ballots heats up"

The Indianapolis Star offers this report, which begins: "A Marion County judge ordered Friday that absentee ballots challenged at the polls on Election Day be set aside for review by bipartisan teams later in the week." Marcia Oddi has the court order as well as orders for the Court of Appeals hearing on the emergency stay, which will be considered Monday.

"Two-state two-step...Registered to vote in Indiana and Florida, thousands in Allen County could be doing the ..."

See here. Another thing national federal universal voter registration would deter.

Read the Von Spakovsky et al. Letter to DOJ

Here.

Buy Some McCain Fine Gold

This is hilarious.