Subject: news of the day 9/15/04
From: Rick Hasen
Date: 9/15/2004, 8:11 AM
To: election-law

Note: News of the day will resume next week.


Chief Justice Denies Injunction in WRTL Case

The Chief's two paragraph order is here. I am not surprised at the result. The order sheds little light on the broader question of "as applied" challenges to the electioneering communications provisions of BCRA.


New Report by Century Fund on Voting Reform

Tova Andrea Wang of the Century Fund has written African Americans, Voting Machines, and Spoiled Ballots: A Challenge to Election Reform. Here is the abstract:



"Court Rejects Electronic Voting Lawsuit"

A.P. offers this report, which begins: "ANNAPOLIS, Md. - The state's highest court on Tuesday rejected a demand that citizens who do not trust touch-screen voting machines be given the option of using a paper ballot and that Maryland be required to take additional steps to protect the security of the Nov. 2 election."


"Battle Intensifies Over Placing Nader on Florida's Presidential Ballot"

The Sun-Sentinel offers this report.


"Court Says No to Metcalfe on the Ballot"

See this report, which begins: "The Alaska Supreme Court acted quickly Tuesday afternoon to reverse a lower court order and strip Republican Moderate Party candidate Ray Metcalfe's name from the Nov. 2 general election ballot."


"Clean Elections Fight Rages"

See this report from Arizona.


Is CBS Not Entitled to Campaign Finance Law's Media Exemption?

See the very doubtful claim made here.


"Debating Deregulation of Campaign Finance: What Can Be Done? What Should Be Done?

The Federalist Society will be holding this event at noon on October 14 in Washington D.C. Confirmed participants include:
* Mr. Craig M. Engle, Arent Fox
* Mr. Craig Holman, Legislative Representative, Public Citizen
* Mr. Michael J. Malbin, Executive Director, Campaign Finance Institute
* Mr. Stuart Taylor, National Journal
* Ms. Allison Hayward, Federal Election Commission, Moderator
More details about the event are here.


"The California Recall Punch Card Litigation: Why Bush v. Gore Does Not Suck"

I have posted this working paper on SSRN. Here is the abstract:

    The unprecedented California recall election of 2003 also spawned an unprecedented amount of litigation over the rules for the recall itself. Much of that litigation was patently frivolous, an attempt to throw up as much as possible against the recall to see what would stick in the interest of delaying or scuttling the recall. The recall litigation became part of what I have termed election law as political strategy.

    But some of the litigation had merit. This paper focuses on one of the meritorious cases, litigation over the use of punch card ballots in Los Angeles and a handful of other California counties in the recall election. Plaintiffs' argument was that the selective use of punch card voting technology, with its extraordinarily high error rates, violated the equal protection rights of voters under the United States Supreme Court’s decision in Bush v. Gore (2000). Bush v. Gore was the case that ended the recount of votes in Florida following the November 2000 presidential election.

    A federal district court judge rejected the argument, but a three-judge panel of the Ninth Circuit accepted it, ordering a delay in the election until the counties could replace their punch card machines with other technology. A larger (en banc) panel of the Ninth Circuit quickly reversed the panel ruling, and the recall election took place as scheduled.

    In a recent California Law Review article, Professor Vikram Amar was very critical of the original Ninth Circuit panel's decision to delay the recall, and even more critical of the Supreme Court's decision in Bush v. Gore. Indeed, in a recent roundup of the top ten lessons of the recall, Amar lists Bush v. Gore sucks as his number one lesson about the recall: the Supreme Court senselessly chose not to be explicit about things in Bush v. Gore, thereby allowing courts such as the Ninth Circuit panel to dubious[ly] interpret the decision as a reason to delay the recall election.

    In this paper, I take issue with Amar. Far from sucking, the Bush v. Gore opinion had the salutary purpose of focusing the attention of the public, elections officials, and - as in the case of the recall - the courts, on some important yet neglected issues of the nuts-and-bolts of democracy. The debate the case has spawned, and the reforms it has started in motion, have thus far had a salutary effect on the Nation's democracy, even if that may not have been the intent of the Supreme Court Justices who decided the case. In Part I, I describe the California punch card litigation in the context of the Bush v. Gore precedent. In Part II, I defend the original three-judge panel's opinion as a permissible application of Bush v. Gore, and I explore more generally how Bush v. Gore has affected the debate over the nuts and bolts of our democratic process.



More Dueling Initiatives in California

See Foes Say Gambling Vote Could Foil State in the Los Angeles Times.


"Parties Strategize on Recounts"

Roll Call offers this report.


Coverage of New 527 lawsuit

See this brief New York Times report and this Marketplace (audio) report.


More on Colorado Initiative: Due Process Argument

A reader writes with the following hypothetical:

    It was my thinking ...that there would actually be a legitimate case against applying the initiative retroactively for this reason: As a voter, I would walk into my polling place not knowing the manner in which my vote will be counted. Let's say I truly support Nader, but want to vote strategically. I could reasonably feel that in an all-or-nothing system I would vote for Kerry, whereas in a proportional system (since the consequences of a Bush victory in CO are much less with respect to the electoral college) I would vote for Nader. Does this not present a constitutional problem?

Good point I'll have to ponder this some more, but at first blush this seems like a more plausible claim than a claim based simply on unfair surprise.

"Kerry Asks FEC for Recount Advice"

A.P. offers this report.


FEC Response in WRTL Case Now Posted

You can find it here.


All the Gory Details on the Nader Florida litigation

You can find the details, including the Florida Supreme Court's orders issued thus far in the case (there have been two) over at Abstract Appeal.


"How One Elector Could Yet Tilt U.S. Election"

The New York Sun offers this article. Thanks to a reader for the pointer. 
-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org