"Democrats Trail Republicans in Fund-Raising, Trials Show"

The New York Times offers this report.

"Panel Goes Easy on Shelley"

The Los Angeles Times offers this report, with the subhead: "Democrats decline to question the secretary of state on alleged misuse of federal funds because he is resigning. His office is reported on the mend."

"Public Financing Could End Pay to Play"

Steve Lopez writes this LA Times column.

"Another Session Brings More Messing with Elections"

See Mark Lane's column in the Daytona Beach News Journal.

Berman on Gerrymandering

Mitchell Berman has posted Managing Gerrymandering on SSRN, forthcoming in the Texas Law Review. The abstract:

Last spring, in Vieth v. Jubelirer, the Supreme Court addressed a claim of unconstitutional partisan gerrymandering for the first time since having held such claims justiciable, 18 years earlier, in Davis v. Bandemer. Vieth was a fractured decision. All nine Justices agreed that partisan gerrymandering is of constitutional moment, a substantial majority declaring that excessive partisanship is unconstitutional. The Justices also united in rejecting the particular gerrymandering test advanced in Bandemer. There agreement ended. Four Justices proposed three tests to replace the unmeetable Bandemer standard. A four-member plurality would have overruled Bandemer more completely by holding that partisan gerrymandering claims present a political question. Standing alone, Justice Kennedy found no proposed test satisfactory but refrained from ruling such claims nonjusticiable. Acknowledging the difficulty in crafting judicially manageable standards and warning, therefore, that the plurality might in time be vindicated, Kennedy refused to admit defeat prematurely.

Disagreeing with the Vieth plurality, this Article argues that courts can manage gerrymandering if they recognize that court-crafted constitutional doctrine need not precisely track court-interpreted constitutional meaning; instead, doctrine is designed to administer that meaning in pragmatic fashion. Although this claim should not prove very controversial, many Justices often seem not to appreciate its truth and importance. To be sure, richer appreciation of the relationship between meaning and doctrine is no panacea. For it to bear fruit here, courts must also better understand the concept of excessive partisanship. And to do that, they must grasp what partisanship means in scalar terms. That is, we cannot know how much partisanship is too much without having a clearer handle on what much partisanship means. Unfortunately, the substantial gerrymandering literature has mostly overlooked this question, focusing predominantly on the logically subsequent task of designing manageable tests.

This Article identifies four conceptually distinct ways to think about partisanship in districting as a phenomenon that possesses a dimension of magnitude or degree. These four distinct conceptualizations are the product of cross-cutting two-part distinctions: whether the baseline for measurement is supplied positively or normatively, and whether the grounds of measurement are ends-based (turning on the electoral outcome that redistricters sought to achieve) or cost-based (turning on the extent to which redistricters sacrificed other districting considerations). In brief, the Article argues that one of these conceptions (the cost-based, positive-baseline conception) is superior to the others, and that much of the confusion and pessimism that have attended academic and judicial discussions of partisan gerrymandering are attributable to implicit adoption of one or another of the alternative - and less satisfactory - conceptions of what it means for partisanship to exist in degrees.

The Article concludes with exploratory thoughts regarding how courts, armed both with a clearer and better conception of amounts of partisanship and a more mature appreciation of the relationship between constitutional meaning and constitutional doctrine, can design manageable judicial doctrine to administer the constitutional ban on excessive partisanship in redistricting. One such doctrine concerns mid-decade gerrymandering, and therefore offers a promising judicial response to the mid-decade Texas gerrymander presently before the courts.

Important Disclosure Case in California

A federal district court has upheld a California law requiring disclosure of spending in ballot measure campaigns. On remand from California Pro-Life Council, Inc. v. Getman, 323 F.3d 1088 (9th Cir. 2003), a federal district court has issued this opinion. >From the introduction:

[California Pro Life Council] asserts that certain reporting and disclosure provisions in California’s Political Reform Act (“PRA”), Cal. Gov’t Code §§ 81000, et seq., violate the First and Fourteenth Amendment rights of CPLC and similar
groups who, among other activities, expressly advocate for and against the passage of ballot measure initiatives. Defendants assert that California has a compelling interest in requiring such disclosures, and that the challenged PRA provisions are narrowly tailored to advance the state’s compelling interest. For the reasons set forth below, CPLC’s motion is denied and defendants’ motion is granted.

The opinion is notable both for its discusion of the "information" interest supporting disclosure and for its discussion of the "major purpose test." I expect this case will be back at the Ninth Circuit soon.

Electionline.org Litigation Update

Electionline.org has just updated its list of election law cases pending (or recently completed) in the courts. It goes on for 48 pages of very small print. This is extremely useful for those of us following the ongoing litigation over election administration and other issues. Find it here.

"New 527 Bill Plugs Some Major Holes, but is it Constitutional?"

Donald Tobin offers this commentary. This commentary is notable because Tobin (and Ned Foley) had initially defended some regulation of independent expenditure committees as consistent with the First Amendment in a BNA article. But now Tobin writes of the new 527 bill: "Although the new McCain-Feingold legislation attempts to close some loopholes exploited by some advocacy group, there is a serious question whether the legislation as written is constitutional. Advocates need to provide strong evidence that contributions to 527 political organizations that engage in only a minimal level of federal advocacy pose significant corruption concerns to warrant the infringement on their First Amendment rights."

Single Subject Challenge to California's Stem Cell Initiative

See this A.P. report. I don't know any details on the basis for the single subject challenge yet.

"FEC Warns Right to Life"

The Milwaukee Journal-Sentinel offers this report.

Carney on Public Financing

Eliza Newman Carney writes Public Financing: Should It Stay or Should It Go? at National Journal.

Two interesting Sacramento Bee opeds

See Commission Would Ease Politicking by Mike Alvarez and Thad Hall (advocating a state electoral commission in California) and Rebuild Trust in Electoral Process by state Sen. Debra Bowen.

Campaign Legal Center Brief in Schwarzengger Fundraising Case

See here for an amicus brief arguing for the court to uphold the FPPC's newly enacted regulations imposing contribution limits on candidate-controlled ballot measure committees in California.

Guy Charles on The Supreme Court and Election Law

Guy Charles has posted Judging the Law of Politics on SSRN, forthcoming in the Michigan Law Review's annual book issue. Here is the abstract:

In this Review Essay I explore the rights-structure debate that has captivated the attention of election law scholars. The Essay juxtaposes the recent work of a leading individualist Professor Richard Hasen's new book, The Supreme Court and Election Law, against the recent work of a leading structuralist, Professor Richard Pildes' recent foreword to the Harvard Law Review.

I argue that even though the rights-structure debate produces much heat, it does not significantly advance the goal of understanding and evaluating the role of the Court in democratic politics. I aim to return election law to a dualistic understanding of the relationship between rights and structure; an understanding that prevailed in the early articulation of structuralism's relevance to judicial review of democratic politics. I shall argue that election law cases cannot be divided into neat categories along the individual rights and structuralism divide. Election law cases raise both issues of individual and structural rights. Therefore, the label attached to election law claims is immaterial. The fundamental questions are what are the values that judicial review ought to vindicate and how best to vindicate those values. These are questions that transcend the rights-structure divide

-- 
Professor Rick Hasen 
Loyola Law School 
919 Albany Street 
Los Angeles, CA  90015-1211 
(213)736-1466 - voice 
(213)380-3769 - fax 
rick.hasen@lls.edu 
http://www.lls.edu/academics/faculty/hasen.html 
http://electionlawblog.org