More Praise for EAC Commissioner Martinez

From Dan Tokaji and Mike Alvarez. All well deserved.

"Judge to Have Key Role as Vernon Casts Votes"

The LA Times offers this report on election day in the tiny city of Vernon, CA.

"Voting rights still need federal protection"

The Miami Herald offers this editorial.

"Publius" Publication Removed from FEC Website Amid Challenge to Commissioner von Spakovsky's Authorship of Article While DOJ Appointee

On March 29, 2005, I revealed that new FEC Commissioner Hans A. von Spakovsky was claiming the authorship of a previously anonymous article (authored by "Publius") about election administration reform. I was surprised both that someone at the DOJ considering these issues would write about them in an anonymous way and that the Commissioner, who is a recess appointee and still must be confirmed if he is to serve a full term on the FEC, would now publicly claim responsibility for the article.

The ACLU has now complained about the Commissioner's authorship of an anonymous article while at the DOJ (thanks to Ed Still for posting the letter) and this Atlanta Journal Constitution article discusses the controversy. "The article was available Monday under von Spakovsky's name and biography on the Federal Election Commission Web site, but appeared to have been removed after inquiries to his office about the ACLU letter."

Now how does removing the article at this point help anyone? This is surely not the last we will hear of this issue.

"Representation Without Party: Lessons from State Constitutional Attempts to Control Gerrymandering"

Jim Gardner has posted this article (forthcoming, Rutgers Law Journal) on SSRN. Here is the abstract:

Since the founding, all gerrymandering of election districts, at both the state and congressional levels, has been accomplished by state actors operating almost exclusively under state law. State constitutions have often served as a first line of defense against publicly disfavored practices, and the treatment of gerrymandering is no exception. The state constitutional record reveals a gradual introduction, diffusion, and evolution of a wide variety of provisions intended to control gerrymandering, including requirements of contiguity, compactness, respect for local political boundaries, and preservation of communities of interest, among others. Indeed, such provisions have been validated by the U.S. Supreme Court and folded into its redistricting jurisprudence under the banner of “traditional districting principles” to which states are constitutionally free to adhere. Yet it is clear that these principles, intended to constrain legislative discretion in drawing district lines, have been spectacularly unsuccessful at restricting partisan gerrymandering, which has become not only routine, but stunningly effective. Why have these provisions failed to impede this almost universally condemned practice?

A close examination of the history of state constitutional attempts to control gerrymandering and the emergence of a state-level jurisprudence of apportionment suggests an answer. The existing panoply of state constitutional controls on redistricting cannot effectively control partisan gerrymandering because it was, and still is, aimed at a completely different problem: ensuring fair representation in the legislature of local economies and the individuals who inhabit them. The principles of representation that emerged at the founding, and that have been carried forward in state constitutions ever since, are rooted in two important beliefs: first, that a community of interest entitled to representation is formed by participation in a shared economy; and second, that such economies are inherently local, and thus properly defined territorially – indeed, by reference to local political units, predominantly counties, which were understood to comprise fundamentally distinct economic units.

On this account of political representation, it is clear why state constitutional apportionment controls are defenseless against gerrymandering motivated by partisan ends: state constitutions to this day contemplate a kind of republican politics in which party plays no overt role, and in which gerrymandering consists of the artificial division of naturally occurring economic communities. Any attempt to control partisan manipulation of representation requires a constitutional system of representation that contemplates some proper role in representative politics for parties and partisanship – precisely what dominant state constitutional conceptions lack. This is not to say that state constitutions therefore lack any resources whatsoever to control partisan gerrymandering. It simply means that any such resources cannot be drawn from "traditional districting principles," but must find their source in more recent principles of equal protection or structural regulation of political parties.

Bauer on Kerry, Malbin and Public Financing

See this very interesting post.

WRTL, and Maine Christian Civic League "As Applied" Challenges to BCRA Continue to Work their Way through Three-Judge Courts in DC

BNA Money and Politics Report gives the details (paid subscription required). (For those looking for information on the new Maine case, see here). A snippet: "During the April 10 hearing before the three-judge court, Moss, the attorney for the congressional intervenors in the WRTL case, urged that the Maine case be consolidated with the Wisconsin case--a move that could put the cases on a slower track. Moss, of the firm Wilmer Cutler Pickering Hale & Dorr, warned the judges that there could be "a proliferation" of three-judge courts handling challenges to BCRA."

"Phone-Jamming Records Point to White House"

A.P. offers this report, which begins: " Key figures in a phone-jamming scheme designed to keep New Hampshire Democrats from voting in 2002 had regular contact with the White House and Republican Party as the plan was unfolding, phone records introduced in criminal court show."

California Attorney General Urges 9th Circuit En Banc Consideration in Padilla and Suggests No Retroactivity; Weighs in on Monterey Issues as Well

See here. My letter to the Ninth Circuit in the Padilla case makes similar points, without the tentativeness of the AG's letter.

Differing Views of the Party Spending Limits Provisions in the House 527 Bill

Bob Bauer weighs in, seeing incumbency and party (especially Republican party) benefits from repeal. Allison Hayward to some extent disagrees.

"It's much too easy to vote illegally in Minnesota"

Katherine Kersten offers this Star Tribune column. She writes:

Some states with same-day registration try to blunt fraud with "provisional" voting. Under this arrangement, election officials set aside the ballots of voters whose eligibility is in question, and count those ballots only after verifying a voter's eligibility. Not in Minnesota. Here we commingle all ballots. After the election, officials may discover that you voted illegally. But your vote has the same effect as any lawful voter's.

Some would ask: Is there a real problem here? After all, it's a felony to vote illegally. But Secretary of State Mary Kiffmeyer says that Minnesota's unique combination of no photo ID requirement, same-day registration and vouching can make it difficult-- sometimes impossible -- to trace or catch lawbreakers.

Thanks to a reader for passing this link along.

-- 
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