Another Oped on Colorado Amendment 36 Problem

Frank Davies offers this commentary in the Miami Herald.

"Backup Voting System Could Cause Problems"

A.P. offers this report.

New York Times Urges More Poll Watchers

See this editorial.

"Among Black Voters, A Fervor to Make their Votes Count"

The New York Times offers this report.

Sinclair Broadcasting to Show Anti-Kerry Documentary

Following up on this front-page report in Saturday's Los Angeles Times, the Washington Post has run this report and the New York Times has run this report.

It is certainly unusual for a broadcast station to run what amounts to a long commentary against a candidate for federal office. (I give some statistics in my "Rupert Murdoch" article on how rare it is for broadcast stations to endorse candidates for office). But---from the point of view of federal election law (as opposed to, say, federal communications law---this is really no different from the New York Times endorsing a candidate for president (or running an oped supporting or opposing such a candidate).

"E-Voting Research Delayed, Experts Say"

A.P. offers this report.

Hayden on Majority-Minority Districts

Grant Hayden has posted a Findlaw commentary, Majority-Minority Voting Districts and Their Role in Politics: Their Advantages, Their Drawbacks, and the Current Law. Thanks to Roy Ulrich for the pointer.

"Behind the Scenes, Officials Wrestle Over Voting Rules"

The Washington Post offers this report. Thanks to Steven Sholk for the pointer.

Waterstone on Lane and Voting Rights

Michael Waterstone has posted Lane, Fundamental Rights, and Voting (forthcoming Alabama Law Review) on SSRN. Here is the abstract:

New federalism's premise is that the Courts are the ultimate arbiter of Congress's ability to use its Section 5 powers to enforce Section 1 of the Fourteenth Amendment. This Article argues that while this principle survives the Supreme Court's recent decision in Tennessee v. Lane, the rules have been changed for cases involving fundamental rights. In Lane, the Court's review of Congress' justifications and constitutional bases for passing Title II of the Americans with Disabilities Act was more relaxed than in previous new federalism cases. While Lane itself does not justify this departure, this Article suggests that the doctrinal and theoretical justification for this shift is that the Court should give a presumption in favor of the validity of Congressional abrogation of state sovereign immunity in cases involving fundamental rights.

This Article applies this view of Lane to a future category of ADA Title II fundamental rights litigation - cases involving the right to vote for people with disabilities. Although earlier new federalism cases would compel a different conclusion, after Lane, Courts should hold that the ADA validly abrogates the States' sovereign immunity in Title II voting cases. This has implications for the whole range of Section 5 legislation.

Finally, the disability rights community has criticized Lane for providing insufficient clarity for future Title II cases. This application of Lane to voting responds to that criticism, showing how the presumption in fundamental rights cases is sufficiently strong as to discourage needless litigation.

Michael is doing some very interesting work at the intersection of disability law and voting rights. I look forward to reading this paper.

Two by Gerken

Heather Gerken has put two articles on SSRN. I have read the first, Lost in the Political Thicket: The Court, Election Law, and the Doctrinal Interregnum (forthcoming in the University of Pennsylvania Law Review). Among other things, the article does a very good job clarifying and moving the debate forward between rights-based election law scholars and structuralists. Here is the abstract:

During the last year and a half, the Supreme Court has issued three important election law decisions in each of election law's main fiefdoms: race and redistricting, campaign finance, and the regulation of political parties. What has been missing from the commentary thus far has been an effort to connect the dots. This essay claims that these three, seemingly disparate decisions can be understood as part of a story that began more than four decades ago, when the Court first entered the political thicket. The Court has long tried to use a conventional individual rights framework - the bread-and-butter of legal analysis - to adjudicate what are often claims about the structure of the political process. An individual-rights framework, however, does not provide adequate analytic tools for resolving such challenges, as the Court's most recent opinions reveal. As a result, the Court as a whole seems to be in a doctrinal holding pattern, unsure of where to go next.

This essay thus argues that we are witnessing a doctrinal interregnum in election law. It charts the course the Court has taken thus far, exploring the connections between the Court's three most recent election law decisions and its prior jurisprudence. It argues that, despite their many differences, each case reveals the dilemma the Court now faces in resolving what are fundamentally structural claims with an individual-rights framework. Part II speculates on the next steps the Court will take. In doing so, it attempts to sharpen the terminology deployed in the "rights-structure" debate thus far and suggests a novel reading of Georgia v. Ashcroft, the Supreme Court's most recent race and redistricting case, as a bridge between the Court's prior strategy for adjudicating vote-dilution claims - policing substantive outcomes - and a more process-oriented approach that deploys a variant of the minority veto. The essay closes by reflecting on how courts might use their regulatory powers to create incentives for other institutional actors to work to improve the structural health of our democracy.

The second paper, which I have not yet read, is Second-Order Diversity and Disaggregated Democracy (forthcoming Harvard Law Review). Here is the abstract:

Much scholarship focused on democratic design is preoccupied with a single problem: how to treat electoral minorities in a majoritarian system. A term often deployed in those debates, particularly those focused on demographic difference, is diversity. When scholars use the term, they usually mean that something - a class, an institution, a decisionmaking body - should roughly mirror the composition of the relevant population.

The problem with this debate is that its participants often unthinkingly extend theories about diversity derived from unitary institutions to disaggregated ones - institutions where the governance system is divided into a number of equal subparts (juries, electoral districts, appellate panels, schools committees, and the like). Thus, despite their prevalence, scholars have not systematically considered how to tailor our normative commitment to diversity to the unique features of these disaggregated institutions.

This Article is a first step toward providing a conceptual framework for describing a recurring set of trade-offs we face when designing disaggregated institutions. Specifically, the paper claims that there at least two types of diversity - first order and second order. The idea I term first-order diversity fits the conventional understanding; it is the normative vision associated with statistical integration, the hope that democratic bodies will someday mirror the polity. The notion of second-order diversity, proposed here, posits that democracy sometimes benefits from having decisionmaking bodies that do not mirror the underlying population but instead encompass a wide range of compositions. Second-order diversity seeks variation among decisionmaking bodies, not within them. It favors interorganizational diversity, not intraorganizational diversity. It fosters diversity without mandating uniformity.

The notions of first-order and second-order diversity provide a framing device that allows us to connect and synthesize the insights offered by a broad array of legal scholarship in assessing the costs and benefits of each approach. This framework thus allows us to play a divergent set of literatures against one another, to find new grounds of criticism and as-yet unexplored sources of connection among them. And it helps put some meat on the bones of a number of undertheorized design practices, identifying values attached to those practices that scholars have thus far neglected.

Missouri Lawsuit on Voting Rights of Those Under Guardianship for Mental Illness

See this press release. Thanks to Grant Davis-Denny for the pointer.

"Libertarians Win Hearing in Debate Case"

The New York Sun offers this report, which begins: "The third and final debate between President Bush and Senator Kerry has been thrown into doubt after a state judge in Arizona ordered a hearing on whether the event, scheduled for Wednesday, should be halted because the Libertarian Party's nominee for president has not been invited." You can find the LP's complaint here (thanks to Doug Greene for this 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