ACSBlog: The Blog of the American Constitution Society

ACS hosted a panel discussion yesterday entitled, "Voter ID Laws: Preventing Fraud or Suppressing the Vote?" Video from that discussion is available here.

The panel featured:

• Julie Fernandes, Senior Policy Analyst and Special Counsel, Leadership Conference on Civil Rights (Real Video / Windows Media)
• Deborah Goldberg, Democracy Program Director, Brennan Center for Justice at NYU School of Law (Real Video / Windows Media)
• Robert Kelner, Partner and Chair of Election and Political Law Practice, Covington & Burling LLP (Real Video / Windows Media)
• Spencer Overton, Professor of Law, George Washington University Law School (Real Video / Windows Media)
• Moderator, Tova Wang, Democracy Fellow, The Century Foundation (Real Video / Windows Media)

Professor David Schultz of Hamline University just released his forthcoming law review article "Less than Fundamental:  The Myth of Voter Fraud and the Coming of the Second Great Disenfranchisement." Professor Schultz argues:

A second great disenfranchisement is afoot across the United States as yet again voter fraud is raised as a way to intimidate immigrants, people of color, the poor, and the powerless from voting. This time the tools are not literacy tests, poll taxes, or lynch mobs, but instead it is the use of photo IDs when voting.

The full article, to be published in the William Mitchell Law Review, is available here.

by Jennifer Maranzano, staff attorney with Advancement Project

On September 17, 2007, the Florida branch of the NAACP, the Haitian-American Grassroots Coalition, and the Southwest Voter Registration Education Project filed a lawsuit challenging a Florida statute that could disenfranchise tens of thousands of eligible citizens. The law bars any Florida citizen from registering to vote if the state cannot match or otherwise validate the driver’s license or Social Security number on a registration form. 

Plaintiffs argue that this “matching” process unduly delayed or denied registrations for thousands of Florida voters in 2006, and will jeopardize many more voters in 2008. A federal judge in Washington State struck down a similar law in 2006. Several other states, including California, Maryland, North Carolina, Pennsylvania, and Texas, have scrapped their "no match, no vote" policies. Florida is one of the outlier states that continue to require this error-laden “matching” process prior to registration.

Plaintiffs and advocates are especially concerned about this law’s impact on communities of color. For example, Florida’s law would affect Latino voters who use maternal and paternal surnames and Haitian Americans whose first two names are hyphenated, both of which may be entered differently in different databases. Additionally, the law could particularly impact the African-American community in which it is more common to have unique names and spellings.

On October 10, 2007, ACS hosted a panel of distinguished former Department of Justice officials to discusses principles and best practices to guide the Department of Justice under the next Attorney General. Video of that discussion is available in the ACS Multimedia Library.

The panel included:

• Dawn Johnsen - Professor of Law and Ira C. Batman Faculty Fellow, Indiana University School of Law-Bloomington; former Acting Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice
• Joseph D. Rich - Director of Fair Housing and Community Development, Lawyers' Committee for Civil Rights Under Law; former Chief of the Voting Section, Civil Rights Division, U.S. Department of Justice
• James K Robinson - Partner, Cadwalader, Wickersham & Taft LLP; former Assistant Attorney General, Criminal Division, U.S. Department of Justice; former U.S. attorney for the Eastern District of Michigan
• Moderator Ronald Klain - Former Chief of Staff to the Attorney General; former Associate Counsel to the President
• Note: Bruce Fein, former Department of Justice official in the Reagan administration, was unable to attend because of a last-minute court appearance.

In a recent Slate article published yesterday, Dahlia Lithwick argues that the Senate Rules Committee should not approve Hans A. von Spakovsky to a full term on the Federal Elections Commission. Why?

Von Spakovsky was one of the people who helped melt down and then reshape the Justice Department into an instrument aimed at diminishing voter participation for partisan ends. . . . [E]ven a brief poke at his résumé shows a man who has dedicated his professional career to a single objective: turning a partisan myth about voters who cast multiple ballots under fake names . . . into a national snipe hunt for vote fraud.

 

The hearing is today.

The Senate will hold a vote tomorrow on the District of Columbia House Voting Rights Act of 2007  (specifically, order Number 257 to invoke cloture) to determine whether the bill will advance to the Senate Floor (bill available here).

ACS held a briefing and released an issue brief on Congressional Authority to Extend Voting
Representation to Citizens of the District of Columbia

Doug Kendall, executive director of the Community Rights Council, has an article in Slate that argues the proposed California referendum to proportionately allocate the state's electoral votes is unconstitutional.

The U.S. Constitution prohibits a ballot measure that would trump a state legislature's chosen method of appointing electors. In Article II, Section 1, the Constitution declares that electors shall be appointed by states "in such manner as the Legislature thereof may direct." That's legislature. California's could scrap its current winner-take-all approach and adopt a district-by-district system for allocating electors (as only Maine and Nebraska currently do). But the voters—whom the initiative supporters have turned to because they don't have the support of the Democratic-controlled legislature—cannot do this on their own.

The argument is further fleshed out on the CRC's web site.

The American Constitution Society's Constitution in the 21st Century project invites you to read Towards Full Participation: Solutions for Improvements to the Federal Language Assistance Laws, an issue brief by Jocelyn Friedrichs Benson, Assistant Professor of Law at Wayne State University Law School.

Professor Benson examines the federally mandated language accommodations in sections 203 and 4(f)4 of the Voting Rights Act, arguing that these accommodations, while important and beneficial, are incomplete. She highlights deficiencies in existing voting protections for citizens with limited English proficiency levels, demonstrating how the protections fail to respond to the changing needs of an increasingly diverse electorate. Benson then suggests a number of remedies to these existing inadequacies.

               The Courts

Judges live in fear after making controversial decisions, reports Law.com.

Greer, who said he's on the federal bench, was one of four current or former judges who appeared in a 90-minute seminar in San Francisco's Moscone Center West to describe how their lives were affected by their rulings in high-profile cases involving hot-button issues. . . .

Many judges believe the current presidential administration has exacerbated the problem by blaming unpopular rulings on "activist judges."

At the annual ABA convention, Justice Breyer says the last term was "a difficult one," reports the AP.

Jamin Rashkin at Slate examines how, in his opinion,  lower courts are protecting constitutional rights as the Supreme Court strips them away.

But even as the Supreme Court conducts broad U-turns on fundamental questions like free speech and racial equality in public schools, many lower courts—including some dominated by Republican appointees—have been acting with vigor to protect the rights of the people.

Findlaw's Michael Dorf argues "the Supreme Court wreaks havoc in the Lower Federal Courts -- Again." He argues a Court decision, Twombly, concerning "the standard to be used by federal district judges in deciding whether to dismiss a lawsuit before allowing the plaintiff to conduct civil discovery . . . has perplexed the hundreds of federal judges who have already had to confront dismissal motions citing Twombly."

Louis Fisher and David Gray Adler discuss whether "we can still count on the Court to protect the rights of citizens." They argue "such trust in the powers of one branch is and has always been misguided."

               The War on Terrorism

"Federal appeals court will hear arguments next Wednesday on whether to stop a class-action privacy suit based on allegations that the government and AT&T Inc. have been working together in an illegal wiretapping program," reports the Washington Post.  The Center for Constitutional Rights "argues that the new legislation violates the First Amendment and the Fourth Amendment," says SCOTUSblog.

The First Amendment claim is based on CCR's belief that its attorneys have been overheard by illegal wiretaps during private telephone calls or e-mails to clients or witnesses and perhaps other attorneys outside the U.S., intruding on attorney-client confidentiality. The Fourth Amendment claim is based on the argument that this overhearing was done without a warrant and with no suspicion of any criminal activity.

The Washington Post examines "How the Fight for Vast New Spying Powers Was Won."

"Mugabe cites U.S. program to justify wiretapping law," says Think Progress.

The Christian Science Monitor has a lengthy report on whether Jose Padilla -- an American citizen held for three years and seven months at the U.S/ Naval Consolidated Brig in Charleston, S.C on terrorism charges --  was tortured.

Padilla's mental health itself is a form of evidence, mental-health experts say, and it strongly suggests that – at least in Padilla's case – the government's harsh interrogation and confinement tactics went too far. . . . "

Padilla's treatment in the brig raises another issue, [legal] scholars say: whether the Constitution ever permits the government to force a man to confess to involvement in terrorist plots and, in doing so, risk destruction of a portion of his mind. . . .

"He is not the same man who was taken into custody in 2002," says Angela Hegarty, a forensic psychiatrist in New York who spent 22 hours examining Padilla. "Whatever happened to him in there has radically changed him. . . ."

Jose Padilla had no history of mental illness when President Bush ordered him detained in 2002 as a suspected Al Qaeda operative. But he does now.

TalkLeft reports on a Newsweek article on whether Guantanamo Bay detainees may be force-fed.

               Law and Politics

No executive appointments during August break, RollCall reports.

Karl Rove has resigned effective the end of August, reports the New York Times. Firedoglake speculates as to why.

 Attorney General Alberto Gonzales admits "top aids got political briefings," reports the Washington Post.

Justice Department officials attended at least a dozen political briefings at the White House since 2001, including some meetings led by Karl Rove, President Bush's chief political adviser, and others that were focused on election trends prior to the 2006 midterm contest, according to documents released yesterday.

               Other News

Malfunctioning voting machines at the GOP Iowa Straw Poll forces a manual recount, according to Daily Kos.

A hearing on predatory lending and sub-prime loans has caught Melissa Ryan's attention.

This Thursday, the Senate Judiciary Committee will hold a hearing on the Deceptive Practices and Voter Intimidation Prevention Act of 2007, a bill which would prohibit lying to voters in order to discourage them from showing up at the polls.  According to the bill's findings, it was introduced in response to a history of such practices:

(6) Shortly before the 1990 midterm Federal elections, 125,000 voters in North Carolina received postcards providing false information about voter eligibility and a warning about criminal penalties for voter fraud. Ninety-seven percent of the voters who received postcards were African American.

(7) In 2004, Native American voters in South Dakota were prevented from voting after they did not provide photographic identification upon request, despite the fact that they were not required to present such identification in order to vote under State or Federal law.

(8) In the 2006 midterm election, 14,000 Latino voters in Orange County, California received mailings from the California Coalition for Immigration Reform, warning them in Spanish that `if you are an immigrant, voting in a federal election is a crime that can result in incarceration...'. In fact, an immigrant who is a naturalized citizen of the United States has the same right to vote as any other citizen.

(9) In the same 2006 election, some Virginia voters received automated phone messages falsely warning them that the `Virginia Elections Commission' had determined they were ineligible to vote and that they would face severe criminal penalties if they tried to cast a ballot.

(10) In 2006 in Maryland, certain candidates for Governor and United States Senator distributed fliers in predominantly African-American neighborhoods falsely claiming that the candidates had been endorsed by their opponents' party and by prominent figures who had actually endorsed the opponents of the candidates.

The bill provides for both civil and criminal penalties against persons who make statements they know to be false to voters with the "intent to prevent another person from exercising the right to vote . . . ."  It also allows for injunctive relief against people distributing disinformation to voters.

The Supreme Court held today that the Bipartisan Campaign Reform Act violates the Constitution by preventing an issue advocacy group by running ads during the election season.  ACSBlog previously featured this case in its midterm review:

Campaign Finance

In McConnell v. FEC (2003), a 5-4 Supreme Court upheld the virtually all provisions of the Bipartisan Campaign Reform Act (BCRA) against claims that the law violates the First Amendment.  Justice O’Connor cast the deciding vote in that case, and her departure leaves the staying power of McConnell uncertain less than four years after it was decided.  This term, the Roberts Court’s decisions in FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life could strip Congress of much of its power to regulate campaign finance. 

The narrow issue in WRtL relates to a provision of BCRA directed towards “sham issue ads,” which purport to advocate a position on a particular issue (“call Senator X, and tell her to . . .”) but which has the alleged effect of enticing voters to vote for or against a candidate for federal office.  In order to prevent such ads, BCRA includes a prophylactic measure which prohibits corporations and unions from running any ad mentioning a candidate’s name within 30 days of a primary or 60 days of a general election.

A potential broader issue is whether longstanding limits on corporations influencing elections will continue to stand.  In Austin v. Michigan Chamber of Commerce, the Court held that because of “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas,” corporations may be categorically barred from contributing to political campaigns.  Justice Kennedy dissented in Austin, and he reiterated this view in McConnell, in which his dissent characterized Austin as “an indefensible departure from our tradition of free and robust debate.”  If the Court’s newest Justices share Justice Kennedy’s view, corporations could soon find themselves with new power to influence federal elections.

Reversing a trial court decision holding a Voter ID law unconstitutional, the George Supreme Court held today that the plaintiff challenging the law lacked standing to sue.  The court expressed no view on the merits of the case, instead holding that, because the plaintiff in this case was qualified to vote at the time her suit was filed, she could not challenge the law for unconstitutionally depriving her of her right to vote.

The Annenberg Public Policy Center and FactCheck.org is sponsoring a conference on judicial campaigns in the states tomorrow, Wednesday, May 23, 2007 from 1:00 – 4:00 p.m. at The National Press Club

In 2006, an estimated $16 million was spent on advertising in Supreme Court races in 10 states, more per race than ever before, with an escalation in fierce and often misleading attack ads. Veterans of the ad wars -- consultants, judges and close observers -- will discuss these trends and what 2008 will bring.

For more on the conference, see this flyer.

Ed’s Note: This is the fourth part of ACSBlog’s series on the Supreme Court cases awaiting decision this Term.  Previous installments of this series are available here, here and here. 

Campaign Finance

In McConnell v. FEC (2003), a 5-4 Supreme Court upheld the virtually all provisions of the Bipartisan Campaign Reform Act (BCRA) against claims that the law violates the First Amendment.  Justice O’Connor cast the deciding vote in that case, and her departure leaves the staying power of McConnell uncertain less than four years after it was decided.  This term, the Roberts Court’s decisions in FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life could strip Congress of much of its power to regulate campaign finance. 

The narrow issue in WRtL relates to a provision of BCRA directed towards “sham issue ads,” which purport to advocate a position on a particular issue (“call Senator X, and tell her to . . .”) but which has the alleged effect of enticing voters to vote for or against a candidate for federal office.  In order to prevent such ads, BCRA includes a prophylactic measure which prohibits corporations and unions from running any ad mentioning a candidate’s name within 30 days of a primary or 60 days of a general election.

A potential broader issue is whether longstanding limits on corporations influencing elections will continue to stand.  In Austin v. Michigan Chamber of Commerce, the Court held that because of “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public's support for the corporation's political ideas,” corporations may be categorically barred from contributing to political campaigns.  Justice Kennedy dissented in Austin, and he reiterated this view in McConnell, in which his dissent characterized Austin as “an indefensible departure from our tradition of free and robust debate.”  If the Court’s newest Justices share Justice Kennedy’s view, corporations could soon find themselves with new power to influence federal elections. 

Bong Hits 4 Democracy

Via TPM:

The section, which is charged with protecting the voting rights of minorities, has seen a dramatic drain in African-American staff over the past few years. And a number of those who have remained have alleged discrimination -- according to a knowledgable source, at least two African-American employees have filed Equal Employment Opportunity complaints against their supervisors, claiming they've routinely been passed over for promotions given to white staff.

 

Carl Goldman, executive director of AFSCME's Council 26, the union that represents non-attorney staff in the Justice Department's Civil Rights Division, told me that he frequently hears similar complaints:

“When I ask our members in the Civil Rights Division what’s their biggest problem, their answer is discrimination.... They tell me stories about minority employees being continually passed over for jobs that are given to white employees. They talk about disrespect from managers. They talk about explicitly racist comments that are made by attorneys, the same attorneys that have been brought in by the Republican political appointees that run [the Justice Department].

"While there are serious problems throughout the Civil Rights Division," Goldman said, "the worst offender is the voting section.”

UPDATE: Deputy Attorney General Paul McNulty to resign.

By Randy Enochs, Editor at Large

By now most of us have probably heard about the controversial “remake” of the 1984 Ridley Scott-directed Super Bowl commercial depicting Senator Hillary Clinton (D-NY) as Orwellian IBM and Senator Barack Obama (D-IL) as liberating Apple.  Right about now many pundits who author blogs are beginning to place big, bright banners, links and e-mail addresses on their websites to support their current choice for our next President.  The internet is an innovation parallel to television, radio and newspaper, and, in many instances, more influential and reaching.  However, the Bipartisan Reform Act of 2002 (BCRA), an important piece of legislation passed into law with a purpose of addressing issue ads, does not currently apply to the internet.  With the role the internet plays in politics via blogs and video clip websites like YouTube, many argue that BCRA should be extended. 

            The issue of applying the BCRA to the internet was at the fore back in March and September of 2005 when Senator Harry Reid (D-Nevada) introduced a bill that called for the inclusion of the internet in the BCRA and the Committee on House Administration held a hearing on the subject of regulation of political speech and activity on the Internet.  In the hearing, the Committee heard from several legislators, election law experts and bloggers on whether or not the internet should be included under the Act.  Professor Bradley Smith, a former FEC chair, wrote on this controversy:

In its conference today, the Supreme Court will consider whether to hear Kidwell v. City of Union, a case which considers whether or not elected officials may use public funds to influence an election.  ACSBlog provided coverage of the Sixth Circuit's decision in this case last September:

A decision by Judges Julia Smith Gibbons and Richard Allen Griffin, both George W. Bush appointees, held that "the electoral process - not First Amendment litigation - is the appropriate recourse" against elected officials using public funds to influence an election.

Judge Boyce Martin, a Carter appointee, dissented:

I believe that the Constitution properly prohibits the government from having a horse in the race when it comes to elections. When government advocates on one side of an issue, the ultimate source of governing power is shifted away from the people and the threat of official doctrine exists. Of course, the threat is not as omnipresent today in the United States as it is in some other countries. . . . ordinary democratic controls are insufficient as a remedy in situations where governmental influence threatens to undermine the independent political process. Governmental advocacy and campaign expenditures could arguably threaten to undermine free and fair elections, could be coercive, and could reasonably undermine the reliability and outcome of elections where the government acts as a participant. . . .

In the ordinary case of governmental action outside of an election, political controls can remedy citizen disagreement with governmental actions. Citizens can make their voices known at the ballot box in the next election by voting current officeholders out. Governmental electioneering, however, diminishes the effectiveness of the political response and threatens underlying constitutional values and democratic principles. The outcome of elections ideally should reflect the pure will of the people unpolluted by government electioneering.

Interestingly, the cert petition being considered in this case raises the possibility of the Court prohibiting state funds from being used to influence elections under the Guarantee Clause of the Constitution.  The Guarantee Clause says that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government," but it has been read as a nullity by the Supreme Court.

Regardless of whether the Court should choose to revive the Guarantee Clause as a textual hook for a decision, or instead look to principles implicit in the notion of elected government, the cert petition argues that the consequences of allowing the Sixth Circuit decision to stand would be disastrous:

A sharply divided panel of the Sixth Circuit in this case extended the government speech doctrine beyond all bounds of principle and precedent. According to the panel majority, that doctrine not only entitles the government to speak, but to spend public funds directly to influence the outcome of an election. That holding is not only wrong, but dangerous. In our constitutional democracy, elections are different. Elections are the fundamental check on the government. To hold that the government is free to spend public funds directly to influence the outcome of an election, as the panel majority did here, is essentially to hold that the government is free to ensure its own perpetuation in power. As the dissent below explained, “when the government uses tax dollars to enter an electoral contest and advocate in favor of a position or candidate, it distorts the very check on governmental power so central to our constitutional design—the next election.”

ACS is pleased to distribute an Issue Brief by Richard P. Bress and Lori Alvino McGill, both of Latham & Watkins LLP, entitled "Congressional Authority to Extend Voting Representation to the Citizens of the District of Columbia: The Constitutionality of H.R. 1905."  According to Bress & McGill, a bill to extend voting representation to D.C. residents is constitutional, despite some reports to the contrary:

The United States is the only democratic nation that deprives the residents of its capital city of voting representation in the national legislature. American citizens resident in the District of Columbia are represented in Congress only by a non-voting delegate to the House of Representatives. These residents pay federal income taxes, are subject to any military draft, and are required to obey Congress’s laws, but they have no say in the enactment of those laws. Because Congress also has authority over local District legislation, District residents have no voting representation in the body that controls the local budget to which they must adhere and the local laws that they are required to obey. District residents thus lack what has been recognized by the Supreme Court as perhaps the single most important of constitutional rights.

Congress is presently considering legislation that would eliminate this longstanding anomaly. The House recently approved H.R. 1905, The District of Columbia House Voting Rights Act of 2007 (“D.C. Voting Rights bill”), which would give District residents a voting representative in the House. The voting-rights bill, sponsored in various forms by Delegate Eleanor Holmes Norton (D-District of Columbia) and Representative Thomas M. Davis III (R-Virginia), would permanently increase the size of the House by two members: one for the District and one for Utah, the state next in line for an additional seat.

Although the D.C. Voting Rights bill has garnered considerable bipartisan support, it raises legitimate constitutional questions and has been the subject of a lively academic and political debate. This issue brief considers the questions raised in that debate, including those raised in a recent Congressional Research Service (“CRS”) report, and concludes that the proposed legislation is within Congress’s authority.

Those who argue that Congress lacks the power to enact the proposed legislation (and must therefore proceed via retrocession or constitutional amendment) rely principally on the fact that the plain text of the Constitution provides voting representation to citizens of “States”. That is not, however, the end of the constitutional story. Congress and the federal courts have on a number of occasions treated the District as if it were a state within the meaning of particular constitutional provisions.4

The history of and policies behind the Framers’ creation of the District, the purpose of the Framers’ enumeration of “States” in the Constitution’s provisions for congressional representation, and the fundamental importance of the franchise support the view that those who drafted the Constitution did not, by guaranteeing the vote to state residents, intend to withhold the vote from District residents. The Framers gave Congress plenary power over the District, including the power, for most purposes, to treat the District as though it were a state and District residents as though they were state residents. The relevant legal precedents suggest that this authority is sufficiently broad to give the District a voting representative in the House via simple legislation.

To read the entire Issue Brief, follow this link.

Yesterday, France voted to send two candidates, right-wing leader Nicolas Sarkozy and Socialist Party candidate Segolene Royal, to a run-off to decide the next President of that country.  As Adrien Wing, notes, however one interesting part of this election is just how much French election law differs from that in the U.S.:

The election is held on a Sunday – a nonwork day for most people to maximize participation. Also today, the day before the election is a day of reflection where the media and the candidates desist. No opinion polls can be published and campaigning is barred. People are supposed to discuss the issues among themselves and their friends and families.

Another unusual aspect of French law, reporters are banned from broadcasting the election results until 8pm on election day.

On Thursday, April 12, 2007, ACS hosted a panel discussion on the upcoming consolidated Supreme Court cases, FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life, which deal with whether the "electioneering communications" restrictions imposed by the Bipartisan Campaign Reform Act of 2002 (BCRA) impermissibly limit the free speech rights of nonprofit corporations. Advocates from a variety of perspectives presented their views on the cases and previewed some of the points likely to be raised when the Supreme Court hears oral arguments on Wednesday, April 25, 2007.

The panel featured:

• Michael B. Trister, Partner, Lichtman, Trister & Ross, PLLC (Windows Media | Real)
• Benjamin L. Ginsberg, Partner, Patton Boggs LLP (Windows Media | Real)
• Paul S. Ryan, FEC Program Director & Associate Legal Counsel, Campaign Legal Center (Windows Media | Real)
• Adam C. Bonin, Member of the Firm, Cozen O'Connor (Windows Media | Real)
• Moderator, Amanda Frost, Assistant Professor of Law, American University Washington College of Law

On April 6-7, 2007, ACS co-hosted a Conference on Elections and Democracy at Stanford Law School at which panelists shared perspectives of a wide variety of issues relating to voter participation, voter representation and comparative voting. Other organizations co-sponsoring the conference included the Stanford Constitutional Law Center, the Stanford ACS Student Chapter, the Stanford Law and Policy Review, and the Stanford Chapter of the Federalist Society.

Click here for a review of the substantive discussions in each panel. Streaming video of each panel will also soon be available in the ACS Multimedia Library.

According to a recent op-ed by Brennan Center attorneys Michael Waldman and Justin Levitt, they are about as common:

Before and after every close election, politicians and pundits proclaim: The dead are voting, foreigners are voting, people are voting twice. On closer examination, though, most such allegations don't pan out. Consider a list of supposedly dead voters in Upstate New York that was much touted last October. Where reporters looked into names on the list, it turned out that the voters were, to quote Monty Python, "not dead yet."

Or consider Washington state, where McKay closely watched the photo-finish gubernatorial election of 2004. A challenge to ostensibly noncitizen voters was lodged in April 2005 on the questionable basis of "foreign-sounding names." After an election there last year in which more than 2 million votes were cast, following much controversy, only one ballot ended up under suspicion for double-voting. That makes sense. A person casting two votes risks jail time and a fine for minimal gain. Proven voter fraud, statistically, happens about as often as death by lightning strike.

As a twist, however, they argue that, while individuals rarely engage in voter fraud, a different kind of fraud may be occuring:

Experts have concluded that the most significant threat of fraud comes from electronic voting systems, now used by 80 percent of voters. Legislation introduced by Reps. Rush D. Holt (D-N.J.) and Thomas M. Davis III (R-Va.) would require a voter-verified record along with random audits to double-check against tampering. It would also bar wireless components from machines that could allow a hacker using a PDA to stage an attack. Lawmakers should also immediately stop pushing ID measures that would turn away legitimate voters.

Recent testimony by FBI Director Robert Mueller bolsters Waldman and Levitt's claims:

Schumer: Since 2001, have there been any FBI investigations related to election fraud which you believe should have resulted in an indictment but did not?

Mueller: Not to my knowledge . . . and nothing has come to my level.

Schumer: Has any special agent in charge ever brought such a case to your attention?

Mueller: No, sir.

The White House released a statement today saying that if Congress passes a bill to allow D.C. residents to be represented in Congress, the President's top advisors "would recommend that he veto the bill."  The House is currently considering a bill to allow D.C. residents to elect a Member of Congress, while also granting an additional seat to the conservative state of Utah.  The White House statement joins the opinion of several conservatives who argue that the bill is unconstitutional because it treats residents of the District of Columbia as if they were citizens of states.

At a recent ACS panel, entitled Voting Representation for the District of Columbia, D.C. Appleseed Executive Director Walter Smith argued that these constitutional concerns are unfounded, citing Supreme Court precedent showing that Congress may extend to D.C. residents the same constitutional rights granted to residents of a state:

The closest case that we have to the current situation is a case in which the Supreme Court of the United States upheld the power of the Congress under the District Clause to confer on District residents a right that the Constitution gives only to states. This is a case called Tidewater

Tidewater grew out of the fact that early in our history, Chief Justice Marshall held for the Supreme Court that under diversity jurisdiction, created under Article III of the Constitution, which gives rights only to citizens of states to invoke diversity jurisdiction to go into federal court. The Supreme Court held that, under that clause of Article III, citizens of the District of Columbia cannot be treated as if they are citizens of states, and he invited Congress then to address that issue.

Congress did address that issue, and in the early 1940s Congress passed a law, under the District Clause, treating District residents as if they were citizens of states for purposes of Article III.

ACS is pleased to distribute an Issue Brief by Nicholas Stephanopoulos entitled "Reforming Redistricting: Why Popular Initiatives To Establish Redistricting Commissions Succeed or Fail." In this piece, Stephanopoulos argues that election district lines have often been drawn “in such a way that fundamental democratic values are subverted.” He then closely examines one avenue for redistricting reform: popular initiatives to establish redistricting commissions.

Stephanopoulos reviews each of the 12 redistricting initiatives launched over the course of American history and identifies several factors that appear to predict their success or failure. He finds that the most important reason for the frequent failure of these initiatives is the concerted opposition of the majority party in the state legislature. In fact, redistricting initiatives succeed only when some factor (e.g., favorable national developments, the enthusiastic support of the state’s media establishment, or division between the majority party’s executive branch officials and its legislators) defuses majority party opposition. Stephanopoulos concludes by drawing lessons for the future, specifically offering to proponents of redistricting initiatives a playbook for increasing their chances of success:

Correction: The report cited in this post was released by Project Vote, not the Advancement Project.  We apologize for the error.

In the lead up to the 2006 elections, several state legislatures introduced "Voter ID" acts, which restricted the franchise to persons able to produce a photo ID on election day.  Although these laws reduced access to the ballot box, they were justified on the grounds that they reduce voter fraud, and thus prevent legitimate votes from being diluted.

Several state courts struck these laws down as unconstitutional, noting that few--if any--examples of actual voter fraud have been documented.  The federal courts, however, have been less quick to invalidate voter ID laws.

A new report by the Advancement Project adds additional fodder to the discussion over the constitutionality of these laws.  According to the report, "very little fraud is being committed."  The report also notes that there is a "200-year history in America of elites using voter fraud allegations to restrict and shape the electorate."

The Advancement Project's summary of their findings is available below the fold:

ACS is pleased to release Neutrality Agreements and Card Check Recognition: Prospects for Changing Labor Relations Paradigms, an ACS Issue Brief by Ohio State law professor James J. Brudney.  Under existing law, employers who oppose allowing their workers to unionize may demand a prolonged NLRB election process to decide whether or not the workers shall organize.  Although this election process is often understood to vindicate employee choice by ensuring that a decision to unionize reflects the informed will of the workers, Professor Brudney argues that NLRB elections, which give employers disproportionate power to influence and intimidate workers against supporting unionization, should not be viewed as the best basis for protecting employee choice:

Preliminarily, there is the uncertainty and delay associated with scheduling the election and resolving disputes about its conduct. Unlike political elections, which occur on dates established well before and independent of the campaign itself, NLRB elections may occur anywhere from several weeks to months after a petition is filed. The election date typically is not set until some time after both sides have begun campaigning and may be postponed for months by employer challenges to the composition of the unit. In addition, post-election objections by the employer may delay the results for years. Employers who oppose unionization understand that delay diminishes the ultimate chance of union success. Employees facing these uncertainties and obstacles are discouraged from maintaining interest in unionization.

More important, however, is the impact of employer speech and conduct that is approved under the NLRB election paradigm. The law, as interpreted, permits employers to restrict employees’ speech with co-workers, while forcing them to attend meetings at which well-scripted managers "predict" dire consequences if employees unionize. Employers make use of intense pressure tactics in the overwhelming majority of campaigns. Union organizers who might counter employers' dire predictions are excluded from the worksite altogether in almost all circumstances.

The stark inequality between employer "incumbents" and union "challengers" regarding rights of access to, or speech aimed at, the voters would be unthinkable in a political election setting. Individual employees attending sophisticated captive audience speeches, or participating in one-on-one encounters with their immediate supervisors, understandably may feel intimidated if not coerced by repeated oral, written, and electronic communications linking "union presence" to layoffs, plant closings, and permanent replacement during a lawful economic strike. Even if an employer does not immediately follow through on such predictions, their repeated expression is likely to affect employees as they contemplate the range of subtler deprivations that union supporters may face in the future.

Unlawful employer campaign activity—most notably termination or other retaliation against union supporters—further damages possibilities for a genuinely free choice. Academic observers analyzing annual Board reports have demonstrated that discriminatory conduct against employees increased at an astounding rate between the late 1950s and 1980; this pattern of employer misconduct persists in robust form today. By 1990, there were incidents of unlawful termination in fully 25% of organizing campaigns: one of every fifty union supporters in an NLRB election campaign could expect to be victimized. A more recent study estimated that by the late 1990s, one out of every eighteen workers who participated in a union organizing campaign was the object of unlawful discrimination.

Last September, former D.C. Circuit Judges Patricia Wald and Ken Starr argued that the Constitution grants Congress the power to extent voting rights to D.C. residents:

Congress's specific power over the District of Columbia is one of the broadest of all its powers. In the words of the Constitution, "Congress shall have power . . . to exercise exclusive legislation in all cases whatsoever" over the District. In a 1984 case decided by the U.S. Court of Appeals for the D.C. Circuit, on which we both sat, Judge Abner Mikva noted that through this constitutional provision, the Framers gave Congress "a unique and sovereign power" over the District. In that same case, Judge (now Justice) Antonin Scalia wrote that the broad language of the power gave Congress "extraordinary and plenary" power over our nation's capital. And in another case, that same court held that this broad power gave Congress authority to "provide for the general welfare of citizens within the District of Columbia by any and every act of legislation which it may deem conducive to that end." It is hard to imagine a broader, more comprehensive congressional power than this; and it is also hard to imagine that the power could not be used to advance a fundamental principle of our Constitution -- that the right to vote should be extended to all citizens.

A recent report by the Congressional Research Service, however, takes the opposite viewpoint:

It is true that the power of the Congress over the District of Columbia has been described as “plenary.” To a large extent, this is because the power of the Congress over the District blends the limited powers of a national legislature with the broader powers associated with a local legislature. Thus, for instance, some constitutional restrictions that might bind Congress in the exercise of its national power would not apply to legislation which is limited to the District of Columbia. For example, when Congress created local courts for the District of Columbia, it acted pursuant to its power under the District Clause and thus was not bound by to comply with Article III requirements which generally apply to federal courts. Or, while there are limits to Congress ability to delegate its legislative authorities, such limitations do not apply when Congress delegates its local political authority over the District to District residents.

It is not clear, however, that the power of Congress at issue in H.R. 328 would be easily characterized as falling within Congress’ power to legislate under the District Clause. While the existing practice of allowing District of Columbia residents to vote for a non-voting Delegate would appear to fall comfortably within its authority under the District Clause, giving such Delegate a vote in the House would arguably have an effect that went beyond District of Columbia. Such a change would not just affect the residents of the District of Columbia, but would also directly affect the structure of and the exercise of power by Congress. More significantly, if the Delegate were to cast the decisive vote on an issue of national import, then the instant legislation could have a significant effect nationwide.

ACS is hosting a lunchtime panel of legal experts on both sides of this issue this Thursday, February 15th, in Washington, D.C.

Writing in the Harvard Law and Policy Review, Ron Klain, who served as White House Chief of Staff to Vice-President Al Gore, argues that, even if progressive legislatures draw district lines to help elect other progressives, gerrymandering itself is fundamentally destructive to progressive interests:

But this Essay’s contention is this: even if partisan gerrymandering worked out to be a “wash” for the two parties nationwide—i.e., even if Democrats gained as many seats from pro-Democratic plans as Republicans gained from pro-Republican plans—the long-run effect of such districting practices would be to lessen public support for progressive government and to tilt the political landscape in favor of conservatism. This view rests on four theses set forth below.

Admittedly, these theses are more the product of a career of observation, rather than the result of social science research. They undoubtedly reflect certain biases, and they flow from the perspective—again, admittedly, a personal and ideological one—that progressivism thrives when citizens can unite to combat the influence of powerful forces in the political arena, and that by coming together this way, progressives can build support for activist government action to promote social and economic equality. While the same could be argued, in some cases, for populist conservatism— which also employs popular organizing as a key tool, and also seeks activist governmental action (albeit of a different sort)—progressivism is generally more dependent than conservatism on grassroots support, collective action, citizen engagement with elected officials, and a connectedness to (and confidence in) the institutions of government.

With this as a backdrop, the ways in which gerrymandering is particularly corrosive of progressivism include the following:

(1) There are fewer shared objectives and needs among voters in gerrymandered districts. Non-contiguous, non-compact districts that do not respect the lines of traditional political subdivisions, and do not represent a true community of interest, are more likely to be filled with voters who do not share common needs or objectives. Voters in a compact area are more likely to come together to petition their representative for some activist governmental measure that would benefit that area—new schools, new roads, new social services—thereby creating a cohesive public pressure for progressive governmental action. By contrast, voters in a noncompact district are less likely to see action on behalf of any one part of that district as benefiting them.

Citing opinions in the Supreme Court case of Republican Party of Minnesota v. White, law professor Monroe H. Freedman argues that “state judges who are subject to reelection cannot decide cases without violating due process of law.”  As Freedman notes, a majority of the Court’s current justices have joined opinions holding that elected judges “cannot help being aware that if the public is not satisfied with the outcome of a particular case, it could hurt their reelection prospects,” and that Due Process is denied if a judge knows that “his success and tenure in office depend on certain outcomes . . . .”

Just a few weeks after new ethics charges were filed which may lead to the disbarment of Durham County District Attorney Mike Nifong, Judge Boyce Martin of the Sixth Circuit published an opinion attacking prosecutorial elections for forcing prosecutors to choose between the Rules of Professional Conduct and the wishes of voters eager for "tough on crime" DAs:

A prosecutor who diligently attempts to promote justice by fairly presenting his case and relying on relevant evidence and testimony may have a harder task ahead of him than one who uses irrelevant and vitriolic attacks to win the jury’s vote. Yet the ethical duties of his profession require that he follow the former path rather than the latter. Such misleading comments and insults hindered the jury’s ability in this case to properly perform its truth-finding function. Prosecutors who employ such tactics abuse the trust of jurors, who naturally rely on the candor of prosecutors when making determinations of guilt.

This type of prosecutorial misconduct is in no small way influenced by public opinion, for prosecutors depend on votes to maintain their positions. Unfortunately, a public official may be given an incentive to abuse his power and disregard his ethical obligations when his livelihood is dependent upon public approval. And the frequent and overzealous pursuit of the death penalty — not only as a medium by which to gain publicity, but to earn favorable standing in the public eye — is a vehicle used by prosecutors to garner votes in the next election. Sadly, some prosecutors, such as the one in Slagle’s case, have allowed the incentives of political gain to trump their duties of professional responsibility. As scholars have noted, an announcement that the death penalty will be sought “provides an opportunity for a prosecutor to obtain news coverage and ride popular sentiments that almost any politician would welcome.” . While a noncapital trial or case resolved by guilty plea will not receive a great deal of media coverage, “[a] capital trial provides one of the greatest opportunities for sustained coverage on the nightly newscasts and in the newspapers.”  Prosecutors are by no means unmindful of the political advantage gained by capitalizing on the number of death sentences they secure.

Although a prosecutor is entitled to advocate his case with zeal, the intentional sensationalization of a trial does a great disservice to the values of the legal profession and the administration of justice. Ohio’s criminal justice system is only degraded by prosecutors who continue to disregard the ethical duties of the legal profession in order to increase their “batting average” of death sentences and other convictions. Through this practice prosecutors are enabled to state that they are “tough on crime,” allowing them to secure more votes, remain in office, and continue their conviction-oriented (rather than justice-oriented) approach. The desire to pander to public opinion has apparently become a “higher authority” for some prosecutors than their duty to follow their code of professional responsibility.  Such a self perpetuating vicious cycle can only be stymied if Ohio’s Code of Professional Responsibility is actually enforced. Lawyers must uphold their pledge to report violations, and prosecutors who abuse our system of justice by disregarding ethical rules for their own self-interest must be sanctioned appropriately.

Although I focus my discussion on the prosecutor’s unethical — if not unconscionable — misconduct, I also note that the judge who presided over this case is not immune from blame. Ohio’s policy of electing judges subjects them to the same political pressures that affect prosecutors.

(citations omitted)

by Daniel Kotler, Editor at Large

Congress has recently taken some significant steps towards increasing the representation of residents of the District of Columbia. Under the status quo, the District of Columbia sends three electors to the Electoral College every Presidential election (provided by the 23d Amendment in 1961), but, like other non-state territories such as the Virgin Islands and Guam, has no senators and only a non-voting Delegate (Puerto Rico has an equally non-voting Resident Commissioner instead of a Delegate). The U.S. Constitution (Art. I, § 8, cl. 17) provides Congress authority over the District. Since 1973, DC has had limited home rule and self-governance, but Congress retains substantial control over the District, including the ability to rescind home rule at any time. Despite this lack of Congressional representation, DC residents still pay substantial Federal taxes. Given DC's majority Black population, DC Delegate Eleanor Holmes Norton emphasized the racial aspect of DC's disenfranchisement: "And you have to understand that the reason this is important for the District is not only was it a majority black city beginning in the late 1950s, but it was a segregated city for most of its existence. The schools were segregated. Even when I went to the schools in the District of Columbia. Downtown was segregated. And that was all at a time when Democrats in particular ran this House. That is why this issue knows no party and why it has huge racial connotations in our country and in the District..."

On January 24th, the House of Representatives restored the right of non-voting Delegates and Residential Commission to vote on certain House business as part of the Committee of the Whole. This vote is largely illusory, however, because the Delegates are not allowed to cast deciding votes; if the vote is by a close enough margin that their votes would matter, the votes aren't counted. The Delegates were given the limited vote by the 103d Congress, only to be stripped of it in the 104th Congress.

A 2-1 decision of the United States District Court for the District of Columbia "if upheld by the Supreme Court, could bring us back to the days before Congress passed McCain-Feingold," according to election law expert Rick Hasen.

Prior to the enactment of the Bipartisan Campaign Reform Act, which is commonly refered to by its principal sponsors, Senators John McCain (R-AZ) and Russ Feingold (D-WI), federal law prohibited express advocacy on behalf of or against candidates by corporations or unions.  In practice, this meant that many such organizations produced "issue" ads, which avoided "magic words" such as "vote for Smith" or "vote against Jones," but which clearly attacked a candidate for public office and which were run in close proximity to an election.

McCain-Feingold tried to end this practice by prohibiting "any advertisement broadcast on tv or radio within 30 days of a primary or 60 days of the general election, featuring a candidate for federal office and broadcast to at least 50,000 people where the candidate was running for office," if that ad was run by a union or corporation.

The District Court's decision places this law in jeoparty, however, as Hasen explains:

The majority essentially says this: as applied challenges are allowed, and we are going to look only at the face of the advertisement itself, and not any context, to determine whether or not an as applied challenge should apply. For example, if the word lacks words of support or opposition to the candidate and the ad makes no explicit reference to the election, these factors point in favor of an exemption. The relevant "test" appears on page 20 of the pdf. The Court says it won't look behind the ads to the subjective intent of those putting up the ad, and it is unmanageable in the context of an election campaign to have expert opinion issued on whether such an ad is likely to influence voters who see the ad over how they will vote in the election. (In this case, the filibuster issue was tied in with abortion politics and could well have been seen as an attack on Feingold for anyone paying attention to politics in Wisconsin at the time).

The dissent rightfully points out the inconsistency of this "see no evil" approach with how the Supreme Court decided McConnell. McConnell was a case that said to look behind the sham issue ads and see what is the functional equivalent of express advocacy. This test is one that closes eyes to political realities. It will allow many opportunities for circumvention by corporations and unions---and I predict eventually non-disclosure as well. (That will likely be Jim Bopp's next argument should he prevail at the Supreme Court.)

But just as the dissent is right that this opinion is inconsistent with McConnell, that does not mean that there's a good chance of reversal here. The Supreme Court is changing. As I've argued, last term's opinion in Randall v. Sorrell shows the move away from deference, and I expect WRTL to continue the trend toward a chipping away at campaign finance laws. Justice Alito is not Justice O'Connor, and that may mean the move toward a deregulated campaign finance system continues.

Brian Tamanaha examines the Wizard of Oz as exposing the flaws of originalism.  As Tamanaha explains, many historians read the turn-of-the-century classic as an allegory for McKinley-era politics, with the Wicked Witch representing imperialist aims in Asia, and the Wizard representing financial "wizards" who controlled the McKinley Administration.  He concludes that this not immediately apparent reading of Oz may suggest a flaw in originalism:

I'm sure others know about this, and maybe I'm exposing my particular ignorance, but I had no idea that The Wizard of Oz was a political allegory. What makes this discovery especially jolting, for me at least, is that its meaning at the time--when many people would have recognized Baum's allusions--was so radically different from its taken-for-granted meaning today.

I hesitate to sully a discovery that is fascinating for its own sake, but I will use this example to quickly make a serious (albeit tangential) point. The original meaning theory of constitutional interpretation has prominent contemporary advocates--including, famously, Justice Scalia--who point to solid political theory arguments in support. But we must be mindful of the elusiveness and haze that envelops original meanings. Unless we turn constitutional interpretation over to trained historians with ample resources and time (and even then there will be problems), our assumptions about original meaning will be precarious.

Commenters on Tamanaha's site suggest even trained historians have difficulty finding the original understanding of a document as venerable and ambiguous as the Wizard of Oz.  One points to a theory that the Wicked Witch of the West represents a "drought ruining western farmers," not Western imperialism, while another cites scholars claiming there is "no real conclusive proof" that Oz stands for more than is immediately apparent within the four corners of its text.

Voters on Tuesday decided on numerous ballot referendums, today's roundup will focus on these decisions:

• The so-called "Jail 4 Judges" initiative, which was decried by retired Justice Sandra Day O'Connor for stripping judges of their independence, was soundly defeated in South Dakota. Only 10% of voters backed the measure.


• Similarly, a Colorado initiative to impose term limits on judges also failed.


• Michigan passed a ban on many forms of affirmative action. The President of the University of Michigan plans to go to court to overturn this initiative.


• A South Dakota initiative which would have banned all abortions except in the event of a medical emergency was defeated.


• Ten states passed initiatives restricting emminent domain.


• Seven states voted for marriage discrimination, while Arizona became the first state to reject such a ballot initiative.


• Missouri's stem cell initiative passed.


• and finally, five states voted to raise their minimum wage.

At a time when the nation waits for finality in the Virginia Senate election, leading voting rights expert and GW Law Professor Spencer Overton discusses the role of felony disenfranchisement on elections in that state:

For example, in Virginia, almost 300,000 Americans who have completely served their time (including probation and parole) are disenfranchised (up from 243,000 in 2000). VA is alone with FL, KY, and Armenia as the only democracies in the world that disenfranchise all categories of former felons for life, even after they have served their time (a burdensome restoration process results in voting privileges for less than 2% of these individuals). Eighty percent of Americans believe that people who have served their time should be able to vote. Virginia legislative history suggests that one purpose of the disenfranchisement law was to suppress the black vote.

by James P. Rooney

For all the discussion this year of a potential watershed election, most voters will find a preordained result in their district's Congressional race. Of the 435 seats in Congress, the nonpartisan Cook Political Report identifies 349 districts as so solid for one the candidates that there is effectively no race at all. Despite polling showing the electorate generally favors a change in Congressional leadership, only 33 races are tossups according to Charles Cook.

The absence of across-the-board competitiveness not only means that voters will have fewer real choices when they enter the voting booth, it will also make (as it has already made) national politics more divisive than it would otherwise be.

Close elections have long been a key feature of functioning democracies. In The Real Majority, Richard Scammon and Ben Wattenberg's classic 1970 study of the American electorate, the authors observed that not only were close presidential elections the norm in United States, but that "around the world most truly democratic elections are close." Only in Northern Ireland did they find a legislative body where candidates were elected with top-heavy majorities because of the sectarian split between Catholics and Protestants. Needless to say, this was not a good thing. The Northern Ireland House of Commons was so dysfunctional that the British government suspended it in 1972.

Close elections have been the rule for a simple reason. In order to win, a candidate must find a way to pick up a majority of votes. However the electorate is divided ideologically, a candidate cannot win without the support of at least some voters in the middle. Every political party that has had any success has been flexible enough to try to find the center and put up candidates that can appeal to it.

The key role centrist voters play acts as a natural corrective that compels elected officials to moderate their behavior while in office. Any office holder who does not play to the middle risks alienating centrist voters and losing the next election because a switch of a few percentage points could change the result.

The Missouri Supreme Court recently struck down a state law requiring voters to display a photo ID at the polls. This decision did not stop a poll worker from challenging the state's chief elections offical when she arrived at the polls today. When Missouri Secretary of State Robin Carnahan arrived at polls to cast her ballot, she was asked three times to present a photo ID by a poll worker claiming they were instructed to ask for such identification from all voters. Carnahan was eventually allowed to cast her ballot without presenting photo identification.

(hat tip: PFAW)

An Electionline report explains that election procedures in much of the country are in flux, and warns that this could lead to problems on November 7th. Among the concerns raised by the report are:

• Concerns about electronic voting machines have been steadily growing since the passage of HAVA, with some advocates and candidates urging voters to use paper absentee ballots and vote from home rather than "risk" casting their votes on electronic voting systems at polling places.


• An 11th-hour decision by the U.S. Supreme Court will allow Arizona to continue to enforce its identification requirements at the polls. Voters will be required to show either a government-issued photo ID or two alternative forms. The legal back-and-forth could
  confuse both poll workers and voters on Election Day, just as it has some journalists in recent coverage.


• Spurred in part by HAVA, the number of states requiring all voters to present identification before voting has doubled since 2000. New rules that require voters present a state- or federally-issued photo ID have been enacted by legislatures in Missouri, Georgia and Indiana, but have been struck down by courts in all but Indiana. The U.S. House passed a similar measure in September. The Senate has yet to take up the bill.


• The federally-mandated implementation of statewide databases continues to challenge state officials. The U.S. Department of Justice sued New York, Alabama, New Jersey and Maine for failing to complete databases, requiring each state to devise a plan to comply with federal law in time for the November 7 vote.


• While there could be numerous places with problems, ten states in particular bear watching, for changes to procedures, recent legal challenges to state policies, close races and new equipment, or in some cases, a combination of all three. The report names Arizona, Colorado, Connecticut, Florida, Indiana, Maryland, New York, Ohio, Pennsylvania and Washington, detailing what to watch for in each.

(hat tip: Rick Hasen)

Building off ideas expressed in his book Our Undemocratic Constitution, Texas law professor Sanford Levinson laments how federal elections favor some voters over others:

[T]he Senate and the Electoral College are among our most grievously flawed institutions. The Senate is not only an affront to our basic value of one-person/one vote; it also acts as the political mechanism by which tax revenues from large states along the Atlantic and Pacific end up disproportionately in the hands of residents of small states, especially in the upper Midwest and Rocky Mountain area, where approximately 5 percent of the national population controls almost a quarter of the vote in the Senate. Much publicity was given last year to the `'bridge to nowhere" voted by Congress for Alaska. Less publicity was given to the fact that such indefensible boondoggles are directly traceable to the Constitution's allocation of voting power in the Senate.

As boondoggles go, `'bridges to nowhere" may seem almost charmingly old-fashioned. But there is nothing charming about funding formulas that award Wyoming three times ($27.80) the per capita Homeland Security spending received by Massachusetts ($9.77)--though perhaps we should take neighborly pleasure that each Vermonter receives $23.83 worth of protection. Nor is there anything charming about an Electoral College system that works to make non-battleground states (a primary example being Massachusetts), nearly irrelevant, as attention is paid (and commitments made) almost exclusively to the lucky residents of the few battlegrounds.

ACSBlog previously highlighted one proposal which would effectively eliminate the electoral college, an interstate compact of states pledging their electors to the winner of the national popular vote.

In an unsigned opinion issued Friday afternoon, the Supreme Court reversed a decision of the Ninth Circuit, thereby allowing Arizona's election to be conducted under that state's voter ID law, which requires voters to present ID at the polls.

While the Court disclaimed any opinion on the merits of this case, election law expert Rick Hasen notes that this opinion is significant in part because it suggests that allegations of "voter fraud" by proponents of voter ID laws may find a more sympathetic ear in the United States Supreme Court than they have in other courts.

Earlier this week, the Missouri Supreme Court struck down that state's voter ID law. In doing so, they noted "[n]o evidence was presented that voter impersonation fraud exists to any substantial degree in Missouri. In fact, the evidence that was presented indicates that voter impersonation fraud is not a problem in Missouri."

Similarly, a Georgia trial judge recently struck down Georgia's voter ID law, finding that evidence of voter fraud was quite sparce:

O]n this issue, the only evidence the Court actually heard was from the State's own witness, Ms. Gloria Champion, representing the Fulton County Board of Elections. Ms. Champion testified that in her 26 years as an employee of that Board, she had personal knowledge of only one instance of voter fraud when someone tried to vote twice.

Last Wednesday, in a decision similar to one recently reached by the Southern District of Florida, U.S. District Judge Jack T. Camp of the Nortern District of Georgia granted a preliminary injunction on First Amendment grounds barring enforcement of a state law that effectively prohibited third-party voter registration efforts. A number of organizations engaged in voter registration drives challenged the law, which mandated that:

No person may accept a completed registration application from an applicant unless such application has been sealed by the applicant. No copies of completed registration applications shall be made. This paragraph shall not apply to registrars . . . .

Carrying civil and criminal penalties up to $5,000 per violation, the law effectively precluded organizations from reviewing or monitoring completed applications. Registration projects alleged that, as a result, they could no longer confirm whether voters were ultimately added to the rolls, inquire whether registered voters needed transportation to the polls, or confirm that registration applications did not contain fraudulent information. At least one of the plaintiff organizations stopped registering Georgia voters altogether in the wake of the bill's passage.

Applying Anderson v. Celebrezze, the court weighed the state's asserted interests against the burdens imposed on the plaintiffs under an ad hoc balancing test. After noting the cessation of registration efforts by one plaintiff organization, Judge Camp observed that the law -- which purported to address voter fraud and identity theft -- essentially duplicated a separate prohibition of identity theft, and lacked an empirical basis as no history of voter fraud has been established in the context of third-party registration drives.

by Justin Cox, Editor at Large

The California Assembly voted on August 30 to approve a bill that would sanction the state's participation in an interstate bypass of the federal Electoral College. Assembly Bill 2948 calls for the creation of an interstate compact that would commit California's 55 electoral votes to the winner of the national popular vote, regardless of whether or not the candidate won the statewide vote. Governor Arnold Schwarzenegger has until September 30 to sign or veto the bill, but reportedly has yet to decide what action he will take.

The compact would take effect when a sufficient number of other states join such that the full roster of state participants represent a majority of all electoral votes. The needed 270 votes could be achieved with just the eleven most populous states. Democratic Senator Debra Bowen, who supports the bill, argues that it would make California relevant again in presidential campaigns.

Arguments concerning the proposed interstate compact focus on its constitutionality; the changes it would bring to our democracy; and the practice effects of a nationwide popular vote for the presidency.

A Georgia trial court has struck down a state law requiring voters to present photo ID at the polls. The is the second time in as many years that a Georgia voter ID law has been successfully challenged in court.

Previously, the Georgia legislature enacted a law requiring voters to present a photo ID in order to cast a ballot. Because state issued photo IDs could only be obtained after paying a fee, a federal court struck this law down as an unconstitutional poll tax. The legislature responded by offering free IDs to voters.

In an opinion by Judge Jackson Bedford, the Superior Court of Fulton Court held this new law to be unconstitutional under the Georgia State Constitution. That constitution reads that:

Every person who is a citizen of the United States and a resident of Georgia as defined by law, who is at least 18 years of age and not disenfranchised by this article, and who meets minimum residency requirements as provided by law shall be entitled to vote at any election by the people.

(emphasis added). As Judge Bedford explains, this provision guarentees the right to vote to anyone who meets four requirements: 1) citizenship of the United States, 2) Georgia residency, 3) 18 years of age, and 4) registration. No other restrictions, such as a requirement that voters present a photo ID, is permissible.

Interestingly, the court also rejected the state's stated rationale for the law: preventing voter fraud. As the court explained, evidence of such fraud was quite sparce:

[O]n this issue, the only evidence the Court actually heard was from the State's own witness, Ms. Gloria Champion, representing the Fulton County Board of Elections. Ms. Champion testified that in her 26 years as an employee of that Board, she had personal knowledge of only one instance of voter fraud when someone tried to vote twice.

(hat tip: Rick Hasen)

Yesterday, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit unanimously ruled in Lee v. Keith to strike down a combination of ballot access requirements imposed by the State of Illinois on candidates for public office. The panel found that by virtue of their combined restrictive effect, the requirements violated the First and Fourteenth Amendments.

Judge Diane Sykes' unanimous opinion notes the effect of particular changes adopted by the State in the 1970s, which effectively foreclosed the possibility of independent candidacy in the years since the changes were wrought. In addition to observing the effect of the restrictions within the State over time, Judge Sykes also noted that among the States, the ballot access requirements maintained by Illinois were uniquely restrictive:

By way of comparison to the other 49 states, Illinois's deadline for independent legislative candidates to file signed nominating petitions-323 days before the general election-was by far the earliest for the 2004 election . . . .

Illinois's signature requirement-at least as it applied to [the petitioner] during the 2004 election-was likewise more stringent than any other state's.

From Professor Sherrilyn Ifill:

It's just that I get the feeling that if an election were held in Beirut tomorrow it might go more smoothly than the election in Baltimore City and Montgomery County, Maryland has run today. What's happening, you wonder? Well, in Montgomery County, a suburb of Washington, D.C. where the most affluent and well-educated voters in the state live, the electronic voting machines that were shoved down the throats of Maryland residents (no paper trail, remember) arrived at the polling places, missing the essential ATM-like key cards needed to enable each voter to cast a ballot. Huh? Someone forgot to pack the cards?

In Baltimore City, the problems have been, well, embarrassing. At many precincts election judges were late or simply didn't show up, so the polls couldn't open. Voters stood in line from 7am when polls were supposed to open until 8, 8:30, 9:45am, before the polls opened. Many voters had to get work and so they left. Wealth didn't insulate voters from this nightmare. In Ruxton, an upper middle class enclave where Kathleen Kennedy Townsend (former Maryland gubernatorial candidate and daughter of Robert F. Kennendy lives) voting machines did not arrive until 11am. Then no official had the keys to start the machine. Voting began at noon.

At polling places all over the City, when machines malfunctioned or didn't arrive, voters were told to vote using provisional ballots (even though those ballots won't be counted for another week, if at all). At still another location, the voters couldn't use the provisional ballots because none of the election judges had thought to bring pencils. In many locations, election judges -- mostly elderly volunteers -- expressed frustration at the training they'd received. Training had emphasized the possibility of voter fraud, rather than how to master the new machines.