Breaking News: EAC Commissioner Ray Martinez Resigns Effective June 30, 2006

You can find the resignation letter here. Commissioner Martinez explains:

I am leaving the EAC strictly for personal and family considerations. My wife, Beth, and I have been blessed with two wonderful children - Sofia Grace and Lorenzo Elder - and we have decided that it is in the best interest of our family to return home to Austin, Texas and focus on our future. Moreover, the recent and unexpected death of my mother has reinforced our desire to be closer to our immediate family.

I completely understand the sentiment; I have made a number of job decisions for family reasons. And I wish the Commissioner well.

But this is a real blow for the cause of election reform. I have gotten to know Commissioner Martinez over the last year, and his service on the EAC has been exemplary. Though he was appointed as a Democrat, he served the office committed to the ideal of nonpartisanship (indeed, he has a forthcoming piece in the Election Law Journal urging that chief election officers in each state take concrete steps to assure that they administer their offices in a nonpartisan manner). He is a lawyer who has participated in a number of academic events, mostly there to listen and learn, but also willing to engage in frank and honest discussion. He is a real leader, and he will be missed by those who care about serious election reform.

"Um, Rep. DeLay, Could I Have My Money Back?"

Roll Call offers this report (paid subscription required). A snippet: "His re-election kitty, probably worth upwards of $1 million, is widely expected to be shifted into a fund to pay his mounting legal bills. While these lobbyists didn't mind cutting checks to the Majority Leader, or even a member of the Appropriations Committee, they aren't so energized about spreading their generosity to DeLay’s legal team because, well, what’s in it for them?"

Kerry's Biggest Mistake

According to this AP report John Kerry thinks his biggest mistake is taking public financing during the general election campaign for president in 2004. The comments are just more evidence that the system is in deep trouble, and is likely to fall into disuse in 2008 unless Congress fixes it. I'm teaching about public financing in my election law class next week, and I just reread Michael Malbin's terrific ELJ article on the subject, A Public Funding System in Jeopardy: Lessons from the Presidential Nomination Contest of 2004, Election Law Journal. Mar 2006, Vol. 5, No. 1: 2-22.

"Electoral College Dropouts"

Jonathan Chiat offers this LA Times column on the National Popular Vote plan. He disagrees with Rep. John Doolittle's comments on Redstate opposing the idea.

"Another Assault on Political Speech"

The Rocky Mountain News offers this editorial.

"Online sites are the new line of political attacks"

The Boston Globe offers this interesting report on negative campaign speech occurring with increasing frequency on the internet. The article attributes some of this negative campaigning to the FEC's rules declining to regulate most blogging under campaign finance laws. But I don't see the connection the article is trying to draw.
Thanks to Adam Bonin for the link.

Padilla issues continue...

Sarah Gorman of Burke Williams and Sorenson passes along this order issued by a federal district court on Friday in Chinchay v. Verjil. The court there held, under Padilla v. Lever, that section 203 applies to initiative petitions but not to referendum petitions. What's the difference? According to the district court:

Most critically, aside from generally regulating the format, the state is not involved in any way with referendum petitions prior to their circulation for signature, in contrast to both recall and initiative petitions....Moreover, the court finds that the wholesale application of the Ninth Circuit's reasoning in Padilla to referenda is also problematic due to two important differences between referenda and initiatives or recalls---namely the thirty day time limit and the often sizable amount of materials that must be included with the referendum petition.

The court also considers whether Padilla applies retroactively, and I think gets the law wrong. The court is right that the Supreme Court in Harper v. Virginia Board of Taxation requires retroactivity of statutes to all whose cases are pending when the court has applied an interpretation retroactively to the parties before it. But in Padilla, that did not happen: the interpretation was not applied to the recall election challenged in Padilla, which took place years before the court actually decided Padilla.

In other Padilla-relate news, Allison Hayward links to this article explaining that some officials believe that Monterey county cannot post campaign finance disclosure forms on a county website unless they are translated into Spanish. Amazing!

Updates to Blog Roll

With the Supreme Court nomination process over (for now) and with the midterm elections coming, I have updated that portion of my blogroll (on the right side of my blog) listing other blogs and websites of interest to election law. Here is the new list of websites I'm reading on a regular or semi-regular basis beyond those that deal directly with election law:
How Appealing
SCOTUSblog
The Volokh Conspiracy
Legal Theory (Larry Solum)
American Constitution Society web log
Balkinization
Disability Law (Sam Bagenstos)
Barone Blog (Michael Barone)
Beltway Blogroll (Danny Glover for the National Journal)
Blackprof.com (Spencer Overton and others)
Roll Call
Political Wire
CQ Politics
Hotline Blog
The Hill
Daily Kos
Red State
Prawfsblog
Concurring Opinions
Orin Kerr

"Judge refuses to yank sludge initiative"

Following up on this post regarding Padilla-related litigation in Kern County, CA, the judge has put off any decision on whether to remove the measure from the ballot until another hearing on April 19.

"The FEC Has Promulgated New 'Coordination' Rules"

Bob Bauer has the details of today's FEC meeting.

Amicus letter in Padilla v. Lever

Today I am asking the Ninth Circuit for permission to file this letter urging rehearing or rehearing en banc in the Padilla v. Lever case. Here is an excerpt from the letter:

Soon after the court's ruling, I wrote an oped in the Los Angeles Times about the case arguing that "[a] little noticed ruling from the U.S. 9th Circuit Court of Appeals last month threatens to throw a monkey wrench into California's initiative process, and it has already been used by City Council members in Rosemead to block a recall election." Richard L. Hasen, Putting a Chill on the Initiative Process, L.A. TIMES, Dec. 12, 2005, available at: http://www.latimes.com/
news/printedition/opinion/laoehasen12dec12,1,3889903.story.

Unfortunately, my prediction has come true. Indeed, applying the logic of Padilla (which itself involved only recall petitions), federal district judges have kept recall and initiative measures off the ballots in at least three California jurisdictions: Loma Linda (see Steven Wall, Judge Rules Loma Linda Petitions Invalid, REDLANDS DAILY
FACTS, Mar. 28, 2006, http://www.redlandsdailyfacts.com/news/ci_3647820); Monterey (In re Monterey Initiative Matter2 (district court opinion posted at http://electionlawblog.org/archives/monterey.pdf); and Rosemead (See Judge Puts Freeze on Recall Election, PASADENA STAR-NEWS, Jan. 18, 2006).

More lawsuits are on the way. See, e.g., Gretchen Wenner, Sludge Initiative on Hold, BAKERSFIELD CALIFORNIAN, Apr. 5, 2006, available at: http://www.bakersfield.com/102/story/44620.html?.

Most disturbing are allegations that some legislative bodies have decided to keep measures off the ballot not out of any concern with the voting rights of protected minority groups, but because they oppose the measures politically.

The concern on the local level, however, may soon spill over into California's June primary election and upcoming November general election. One statewide initiative will appear on the June statewide ballot (see http://www.ss.ca.gov/elections/elections_j.htm#2006Primary), and a number are in various stages of the qualifying process for the November election (see http://ss.ca.gov/elections/elections_j.htm#circulating). It seems just a matter of time before someone begins challenging one or more of these 50+ measures in circulation as violations of section 203 of the Voting Rights Act, because, consistent with California law, these petitions have been (or are being or are about to be) circulated only in English.

Meanwhile, those who circulate initiative and recall petitions, and the election officials who are supposed to advise them, are unsure how to act. See Mark Garcia, Petitions May Need Spanish Translation, ORANGE COUNTY REGISTER, Apr. 3, 2006, available at:
http://www.ocregister.com/ocregister/homepage/abox/article_1086187.php ("SAN JUAN CAPISTRANO-- City officials are trying to determine whether a petition challenging a San Juan Hills Golf Course housing proposal for older adults and an amendment to the general plan was done correctly. [P] The city was alerted today by the
Orange County Registrar of Voters Office because the petition was not translated into Spanish, Assistant City Manager Bill Huber said. He said he wasn't sure whether the petition needs to be written in a second language.").

Regardless of how this court ultimately resolves the application of section 203 to recall and initiative petitions, the court should grant rehearing to insure that its ruling applies prospectively only. There are strong reliance interests at stake for those who have participated in the initiative and recall processes: think of the many signature gatherers and proponents who have invested and are investing substantial time and money to qualify these measures. But beyond that, even recall and initiative proponents who would wish to comply with section 203 as construed by the Padilla majority cannot do so under existing state law. (See footnote 1, supra.) If section 203 ultimately is going to apply to recall and initiative petitions, this court should give time for California authorities to rewrite their laws so as to accommodate multi-lingual petition requirements....

Finally, applying section 203 prospectively will not infringe on the voting rights of groups protected by section 203. As I noted in my Los Angeles Times oped, "The petitions serve merely to qualify initiative or recall questions for the ballot. Once those measures are on the ballot, then all voters in the jurisdiction get to vote and are entitled to relevant ballot materials in all languages required by the Voting Rights Act."

-- 
Rick Hasen 
William H. Hannon Distinguished Professor of Law
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