"How to Ensure Accurate, Secure Voting Systems"

EAC Commissioner Ray Martinez III has written this Roll Call commentary (paid subscription required). A snippet:

Since 2000, the National Institute on Standards and Technology, a well-respected government agency staffed by scientists, technicians and engineers, has operated the National Software Reference Library. Containing a collection of more than 7,000 software products in a secured room, the NSRL provides law enforcement personnel, including the FBI, with important data used to identify unknown and suspicious files on computer systems and to meet the need for court-admissible evidence in the identification of software files.

Realizing the potential use of this application to the election process, last year the EAC called on all voting systems vendors to voluntarily submit their proprietary voting system software to the NSRL to create a similar repository for state and local election administrators. The voting system vendors agreed.

Today, the NSRL contains proprietary code and software for most types of electronic voting systems used in this country. In the coming weeks, the EAC is expected to vote on a series of proposed final standards which, among other things, would require that all voting system software, including installation programs and third-party software, be deposited with the NSRL upon completion of a national voting system certification process, in which 41 states currently participate.

"House Moving on VRA"

Roll Call offers this report. Two snippets:

“Section 5 is obviously the key element that has to be reviewed and extended,” said Conyers, who added he believes it will be critical not to overload the legislation with “extraneous material that’s not already on it,” such as suggested provisions protecting the voting rights of former convicts.

Lawmakers also are expected to discuss the possibility of expanding Section 5 to apply nationwide, rather than to selected states with documented histories of discrimination.

Democrats, including Lewis, oppose such an expansion, asserting that it could weaken the act and open it to constitutional challenges.

“That would be the death of that section,” Lewis said. “In the final analysis, there will be a consensus that we should not tamper with the real essence of the act. It’s been very, very effective for the past 40 years.

...

In the meantime, Senate Judiciary Chairman Arlen Specter (R-Pa.) and Sen. Edward Kennedy (D-Mass.), who sits on Specter’s panel, are continuing work on a bipartisan reauthorization bill.

Although the pair had hoped to introduce the legislation following the Labor Day recess, the committee’s schedule, including confirmation hearings for now-Chief Justice John Roberts, have delayed that effort, a Kennedy spokeswoman noted.

D.C. Circuit Denies En Banc Hearing in Shays v. FEC; It Looks Like the FEC Will Write New Regulations and Decline to Petition the U.S. Supreme Court for Cert.

So reports BNA (paid subscription required). See also this Roll Call report (paid subscription required) and this report in The Hill (free access!).

War Veteran vs. Almost Elector

A.P. reports that Paul Hackett, an Iraq war veteran, is running for Senate in Ohio. He will run in the Democratic primary against Sherrod Brown. Brown, as blog readers may remember, was a Kerry elector until it was pointed out that he was ineligible to serve. The winner of the Democratic primary will face incumbent Republican Senator Mike DeWine.

Why AG Gonzales Will Not Be Nominated to Replace Harriet Miers and What We Might Get Instead

The signs are pointing to a withdrawal of Harriet Miers' nomination, probably soon. The biggest sign was the President's non-answer at a press conference today to a question about a withdrawal. I had the same reaction as Ann Althouse: "Note that [President Bush] did not express confidence that she would be confirmed or that she would make a fine Justice. He focused on her general excellence, unrelated to the position she's been nominated for, and on the Senate, stepping up the pressure to give her a fair hearing -- right after turning up the heat about the denial of the documents. It seems as though he wants the Democratic senators to make more of a stink about the documents so that he'll look more credible blaming them for forcing him to withdraw her name. I'll bet they are too smart to make that move, though. Let him twist in the wind while they hold their fire until the hearings. Or maybe even -- crazily riskily -- just go ahead and support her and leave Bush to solve his own problems, without using them for leverage."

The excuse for withdrawal appears to be a fight over executive privilege. The president won't turn over documents needed to show Ms. Miers' views on legal issues that arose in the White House. If that is indeed the basis for withdrawal, it is doubly good news for conservatives, because presumably it would take AG Gonzales out of the running too. There, the administration certainly won't want to turn over such documents (especially related to torture). Gonzales is probably the leading candidate to substitute for Miers who would be attacked by the right.

The flip side of all of this is that the new nominee could well be to the right of Miers, especially on issues like voting rights and affirmative action. Jack Balkin explores the alternative scenarios for nomination. Jack thinks the Gang of 14 might block a more conservative nominee, making it more likely that Bush will nominate a moderate. I disagree with the latter part of this analysis. The Gang of 14 could well block the nominee, but I think this helps Bush. If Bush nominates a Janice Rogers Brown, he gives the conservatives the fight they want, and regains capital with them. If he later fails after the strong Senate battle, he can come back with a more moderate nominee and a more supportive base.

If Bush is smart and wants a strong conservative who will actually be confirmed, he should nominate Judge McConnell. But it is not clear whether Bush really wants a strong conservative on the Court.

"DIRECT DEMOCRACY ON THE BRINK: THE CALIFORNIA SPECIAL ELECTION"

USC will hold this very interesting conference on November 1.

"Democracy in Voters' Hands"

The Washington Post offers this editorial in favor of the redistricting measures in Ohio and California.

"The Value of the Vote: The 1965 Voting Rights Act and Beyond"

I'll be speaking at this conference at Howard University School of Law on Friday, October 28. You can find the program here.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 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