"Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?"

Slate has just published my latest Jurisprudence column. It begins:

Since the 2000 Florida debacle of Bush v. Gore, in which the United States Supreme Court decided the fate of the presidency after a razor-thin vote difference between George W. Bush and Al Gore, candidates in close election contests have lawyered up. Rates of election litigation have more than doubled in the last decade. The big election contest in 2008 was the U.S. Senate race between Al Franken and Norm Coleman that took months to resolve. This time around, the Minnesota governor's race is going to a recount, an election for Supreme Court justice in Washington State may do the same, and eight Congressional races remain too close to call.

The U.S. Senate race in Alaska is the most riveting squeaker of the season. So far, "write-in" leads Republican Joe Miller by more than 10,000 votes. Alaskan officials started counting those ballots last week; it's no surprise that most appear to be intended for Lisa Murkowski, who lost the Republican primary to Miller. But not everyone spelled Murkowski's name right, and Miller has now sued in federal court to block the rules being used for counting the misspelled ballots. The fight illustrates a tension in resolving close elections between deferring to the voters' apparent preference and sticking to clear rules--established ahead of time--so that election officials or judges can't manipulate the process to favor a particular candidate. Miller's lawsuit probably won't succeed, but it has a secondary purpose: ensuring that the counting is aboveboard.

Could Joe Miller Win in the U.S. Senate if He Loses in Alaska and the Courts?

Mike Stern explores.

"Worried DFLers exploring options if GOP tries stalling after governor's recount: Then what?"

Jay Weiner games it out.

"Beyond Citizens United: Campaign Finance Law and the Roberts Court"

I'll be speaking to the Los Angeles Chapter of the J. Reuben Clark Law Society on this topic on Wednesday Nov. 17 at noon. The link above takes you to information if you'd like to RSVP.
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"Repeal the Seventeenth Amendment"

Todd Zywicki has written this piece for the National Review.

"Alito and Ethics"

This post on the Constitutional Law Prof Blog raises the question: "Is it legal for a Justice of the United States Supreme Court to attend political fundraisers?" I suppose a more accurate question is whether it is ethical for a Justice to not only attend such a fundraiser, but to speak at it as a keynote speaker. More here. The con law blog cites the relevant judicial canon, which at first blush appears to apply to speaking at a fundraiser for the American Spectator magazine. But perhaps I'm missing something, such as ethics opinions construing the canon.
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George Skelton Bullish on California Electoral/Structural Reforms

I wished I shared his optimism.

Matt Bai on Alaska and Two Primaries

Worth a close read.

Matt Bai on Alaska and Two Primaries

Worth a close read.

Kang: The Tea Party and a Supply-Side Approach to Party Polarization

Here is a guest post from Michael Kang:

There has been a great deal of post-election debate about the Tea Party's contributions to Republican success this year, but an irony is that three-way races precipitated by Tea Party candidates in Florida and Alaska also suggest a new approach to reversing the party polarization of which the Tea Party itself is symptomatic. Reforms to reduce polarization usually have focused on the demand side of party politics (i.e., the mix of voters), mainly by moderating the primary electorate through open or blanket primary formats.. A different approach to moderating major party politics might be instead to loosen the supply side of politics (i.e., the mix of candidates) by opening up the process for candidates to reach the general election ballot without a major party nomination, even while retaining the basic system of major party nominations and first-past-the post elections. This year's races provide at least a couple examples of how this approach might work.

Look at the Florida and Alaska races for U.S. Senator, where incumbent statewide officeholders--Charlie Crist and Lisa Murkowski--entered the general election as independent candidates without their former party's nomination. Both were well-known Republicans and more moderate than the Tea Party candidates who won the Republican nomination in those races. Crist's and Murkowski's entries as independents into the general election, at minimum, offered a credible but more centrist alternative to the Republican nominee than voters otherwise would have had. Crist did not win the election in Florida, but he pressured the Republican nominee Marc Rubio to tack more clearly to the center than Rubio otherwise might have. Murkowski's independent candidacy in the Alaska race did not move Republican nominee Joe Miller as much toward the political center, but Miller might pay the electoral price and fail to win as the Republican nominee in an overwhelmingly conservative state. Murkowski, despite running as a write-in independent, is likely to win re-election after the process plays out, putting into office a more centrist senator than the Tea Party candidate who otherwise would have won the election.

So, the Tea Party experiences in Florida and Alaska suggest how centrist pressure can be applied by loosening the grip of the major party bases (which have become increasingly polarized) on ballot access and allowing credible politicians to bypass their parties more easily when ideological demands become more extreme. In a forthcoming paper in Georgetown Law Journal, I argue that a specific supply-side reform that could work this way is the repeal of sore loser laws that block primary losers from running in the subsequent general election. Almost every state has such a law, and sore loser laws this year blocked more centrist candidates like Trey Greyson and Mike Castle from even considering a sore loser candidacy against more extreme Tea Party rivals who defeated them in the primary. (Only the absence of a sore loser law in Connecticut permitted Joe Lieberman to run as a sore loser in 2006 after his primary defeat.) Of course, most primary losers will choose not to run as a sore loser for political reasons, regardless of the law, but even the legal opportunity to do so at all looms as a threat that pushes the polarized major party bases more toward the center before and during the primary process. In this way, a repeal of sore loser laws would mitigate polarization, while still retaining the basics of party nominations and first-past-the-post elections. Major parties would continue their central role in nominating candidates and signaling important information to voters, but they would simply relinquish what is usually a monopoly on meaningful ballot access in general elections for serious candidates.

It is easy to view ballot access outside the major parties as largely inconsequential in the American system because, just as we'd expect under Duverger's Law, most independent and minor party candidates right now are marginal performers who do not win elections. However, there is an important connection between ballot access in the general election for independents and minor parties on one hand and the intraparty politics of the major parties on the other hand. Freer ballot access in the general election for independents and minor parties offers credible politicians within the major parties more opportunities to bypass the ideological veto of their party base when party demands become extreme. Conversely, tighter ballot access restrictions for the general election give the dominant groups within the major parties greater legal leverage over more moderate dissenters by making them more dependent on the party bases for ballot access. We can see in the Florida and Alaska races a hint of how ballot access outside the major parties actually might have an important effect on intraparty politics and how less restrictive ballot access might moderate politics from the supply side in today's polarized major parties.

Caperton v. Massey Lives on (Now Coming to Virginia)

See here and here.

"Lobbyists' Newest Targets in Wall Street Reform Battle? Federal Oversight Agencies"

This item appears at the Open Secrets Blog of the Center for Responsive Politics.

"Dem donors split on 2012 strategy"

Politico offers this report.

"Half of Outside Spending in Campaigns Came From Groups Not Revealing Donors"

BNA offers this report.

ELJ Call for Papers on Indian Election Law

We are pleased to announce a call for papers on election law and administration in India or other South Asian countries. The papers will be considered for publication in a special issue of the Election Law Journal, to be published in early 2012. Comparative papers, including comparative work on the U.S. and Indian election systems, are especially welcome.

Those interested in submitting papers should submit an abstract (not longer than one page) with a CV by December 1, 2010 to Professor Robert Moog (rsmoog@gw.ncsu.edu), Department of Political Science, North Carolina State University. Authors of selected papers will be invited (with travel and accommodations provided) to present their papers at a workshop at North Carolina State University on May 20-21, 2011. Drafts will be due in late April, with ultimate publication dependent on peer review.

Paul Gronke & Daniel Tokaji
Co-Editors, Election Law Journal

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
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rick.hasen@lls.edu
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