John Fund on Voter ID and Universal Voter Registration

I missed this John Fund column in the Wall Street Journal Monday. John is a big believer in voter identification, and I have been pushing him and others to agree that voter i.d. only makes sense when the government pays all the expenses associated with getting the i.d. and in fact proactively goes out and conducts universal voter registration. I think the Monday column was the first time in print that John moved toward endorsing that approach:

Some analysts say a photo ID law could pass on the national level only if it is seen to satisfy both sides. "As part of an overall bipartisan package of election reform--which would include universal voter registration conducted by the government--national voter identification makes sense, especially if structured to limit absentee vote fraud, and so that identification can be checked across states," says Rick Hasen, a professor at Loyola Law School. But he says that excessive "partisan jockeying is not going to increase public confidence in the outcome of elections."

Sen. McConnell's proposed photo ID requirement is a good idea, but it may be able to move forward only if he puts some real money on the table to ensure that everyone who wants to vote can get an ID. In that, the photo ID issue resembles the immigration debate itself. The only immigration bill that is going to pass both houses is one that combines beefed-up border enforcement with steps that regularize the growing demand for labor from Mexico via some kind of legal guest worker program. But sadly, in the case of both photo ID and immigration, political jockeying appears to be the order of the day. It may take a lame-duck session of Congress after this year's election for members finally to address both issues seriously.

"Left Speechless"

Investors Business Daily offers this editorial on John McCain and campaign finance reform.

Wisconsin Election Reform Update

See here.

A Pyrrhic Victory in the California Supreme Court

I consulted with Californians for an Open Primary, a group that placed a measure to establish a "top two" primary in California (after the U.S. Supreme Court struck down the Prop. 198, establishing a blanket primary, in California Democratic Party v. Jones). In response to the threat of this measure, designated Prop. 62, the legislature sought to put on the ballot a competing ballot measure that would change the constitution to enshrine the party primary and also contained a provision that allowed the state to sell surplus property.

We filed suit, alleging that the Legislature could not put the two measures together, because the California constitution required that each constitutional amendment submitted to the legislature by the people be subject to a "separate vote." The court of appeal agreed that the measure, then designated Proposition 60, violated the separate vote requirement, but ordered the measures bifurcated into Prop. 60 and Prop. 60A. We sought emergency relief in the California Supreme Court (at this time, I was in New Zealand, Fred Woocher was in London, and the California Supreme Court justices were not in session), and the Court denied relief.

Now, almost two years later, the California Supreme Court has issued its opinion on the merits in Californians for an Open Primary v. McPherson. The California Supreme Court agreed with us that the measure violated the separate vote requirement (which the court read as coextensive with the single subject rule) and that bifurcation is not an appropriate remedy for a separate vote violation. This is a very sensible ruling, because (1) it means that the courts won't have to create new law about what the "separate vote" requirement means and (2) bifurcation would mean that the legislature would have no deterrent for violating the rule. By the way, for those interested in the meaning of California's single subject rule, there is some analysis of the "reasonably germane" test that could prove to be important.

Unfortunately, victory though this is, this ruling does little for the open primary in California. The people of California should have been able to vote on Prop. 62 alone, not with Prop. 60 on the ballot as well, which could have confused voters and certainly caused Prop. 62's supporters to have to divert attention to other things. In a perfect world, the voters should get another chance to vote on Prop. 62 without the distraction of Prop. 60.

"Votes Come In, And Conspiracy Theories Come Out"

Bush v. Gore meets "American Idol?" See this Washington Post article.

"Lawyer blasts voting machines; Judges hear argument on their unreliability"

NJ.com offers this report.

Interesting Post on Anonymous Campaign Literature

Check out anonymous campaign literature -- what should we do? at f / k / a. The author would like suggestions for how to deal with a real-world campaign situation. Why not go to his site and an a comment?

Yablon on "Validation Procedures and the Burden of Ballot Access Regulations"

Robert Yablon has published this student comment in the Yale Law Journal. Here is the abstract:

Despite the prominent role they play in election contests, validation mechanisms have largely escaped judicial and scholarly scrutiny. This Comment urges courts to assess the constitutionality of a state's ballot access scheme in light of how the state evaluates and certifies a candidate's nomination materials. As Part I explains, Nader v. Keith, a Seventh Circuit decision authored by Judge Posner, takes some tentative steps in the right direction. Part II builds on Judge Posner's analysis to suggest that ballot access doctrine obliges courts to be sensitive to the difficulties validation mechanisms can create. Part III then explains why giving partisan actors a central role in challenging an opponent's nomination filings may present special constitutional problems because private challenges can be a potent way to limit the political participation of disfavored candidates.

I look forward to reading this. For an additional excellent analysis of Nader v.Keith, check out Richard Winger's new article in ELJ (free access).

Foley on "The Promise and Problems of Provisional Voting"

Ned Foley has posted this article (George Washington Law Review) on SSRN. Here is the abstract:

This piece examines the first major test of provisional voting after the enactment of the Help American Vote Act of 2002 (HAVA). The 2004 presidential election demonstrated the HAVA system of provisional voting is seriously underdeveloped, in large part because of ambiguities and gaps in HAVA itself. These deficiencies prevent provisional voting from serving as the "insurance policy" HAVA intended it to be. The article recommends that, before the 2008 presidential election, new legislation should be enacted that would establish preelection mechanisms for verifying voter eligibility and that these preelection verification procedures be used to streamline postelection disputes over provisional ballots.

Leib and Ponet on "Citizen Representation and the American Jury"

Ethan Leib and David Ponet have posted this article on SSRN. Here is the abstract:

Participatory and deliberative democrats are increasingly relying on groups of "lay" citizens to have a direct hand in policy formation and consultation. However, these theorists have not adequately addressed how these "citizen representatives" should be selected and how their activities can be truly deemed "representative". We find these lacunae unsurprising in light of continued confusion in the representation literature about the relationship between democracy and representation - and the continued lack of effort to bridge normative theories of political representation with sensitivity to real institutional practices of representation. Accordingly, we look at a particular institutional manifestation of democratic representation - the American jury system -and tease out a theory of "citizen representation" that highlights six central desiderata: deliberation, impartiality, cross-sectionality, civic responsibility, legitimacy, and indirect accountability. An analogy that proves rich upon examination, we find that the jury's implicit theory of citizen representation has much to recommend to proposals and practices of citizen representation in other institutional settings.

Thanks Dan Tokaji...

for doing a terrific job filling in while I was gone. It is amazing how much election law news there is these days every day.

Thanks for Having Me

I've very much enjoyed guest-blogging here over the past couple of days. Doing so has given me an even greater appreciation for the wonderful work that Rick Hasen does every day, in keeping us all up to date on election law developments. It's a tremendous service, for which I -- like all readers of this blog -- am immensely grateful. Thanks Rick!

-- Dan

New Suit Against Arizona's Proposition 200

A coalition of groups has brought a new federal lawsuit challenging provisions of Arizona's Proposition 200 requiring proof of citizenship to register and identification in order to vote. The Arizona Republic has this report and background on the registration requirements of Proposition 200 -- including an Election Assistance Commission opinion on the subject -- is available here and here.

Shaw v. Reno Revisited

Following up on my response to a recent comment from Rick Pildes on the electionlaw listserv, I've posted a couple of documents from Justice Harry Blackmun's papers relating to the Shaw v. Reno decision -- and specifically, to Justice Souter's switched vote which, as Rick noted, is mentioned in my forthcoming book chapter, "The Story of Shaw v. Reno," to be published in Race Law Stories.

The first document contains Justice Blackmun's conference notes, showing that their were originally six votes to reverse (i.e., to side with the plaintiffs arguing that the North Carolina plan was an impermissible racial gerrymander). This is indicated by Justice Blackmun's notation "6-3 to -" at the bottom of the second page. Although Justice Blackmun's writing is difficult to decipher, it appears that Justice Souter thought that racial gerrymanders for a proper purpose were permissible, but was originally concerned that the case had been decided on a motion to dismiss. The other document is a June 25, 1993 memo from one of Justice Blackmun's clerks, indicating that Justice Souter had switched his vote and circulated a separate dissenting opinion.

Comments on the chapter or these documents -- especially from former Blackmun clerks who might be able to decipher his conference notes better than I have -- would be welcome.

Ohio Dems Kill Redistricting Proposal

The AP has this story on the maneuverings on the floor of the Ohio House today, regarding proposed constitutional amendments that would overhaul the state's redistricting system. I've posted more on today's developments, including my own views on what happened today, here.

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