More Alaska Supreme Court Briefs in Joe Miller Case

You can now read briefs from the state, Murkowski, and the Alaska Federation of Natives (amicus). Two things caught my eye in the state's brief. First, my friend Lisa M. Lackey makes an appearance on page 60. Second, the state's brief at 18 quotes my Democracy Canon article, noting my observation that Alaska has a particularly strong form of the canon. Murkowski endorses the canon as well in her brief. (As I wrote in my reply to Chris Elmendorf's response piece on the canon, this is not a "Democratic Party" canon; it is a canon favoring voters that in certain circumstances can help Democrats, Republicans, or others.) It will be interesting to see if Miller responds on the Democracy Canon point in his reply brief due Thursday afternoon (oral argument is Friday afternoon).

"Shirking the Initiative: The Effects of Statewide Ballot Measures on Congressional Roll Call Behavior"

Huder, Ragusa, and Smith have written this article for American Politics Research. Here is the abstract:

Do ballot measures affect congressional voting behavior? Examining the issues of gay marriage, campaign finance, and minimum wage, we test if the results of statewide ballot initiatives inform congressional roll call votes on legislation occupying the same issue space. Theoretically, we expect signals from ballot measures--which provide precise information about the preferences of a member'™s voting constituency--reduce policy "shirking" by members. Our findings across the three issues indicate that ballot initiative outcomes alter the floor votes of members of the House, reducing legislative shirking, but we find that the educative effect of ballot measures is attenuated in the Senate due to institutional factors. We attribute the positive effect in House to the precise signal ballot measures provide members about the preferences of the median voter in their district.

No Minor Party Members in CA Prop. 11 Redistricting Commission

Richard Winger explains.

"Tax-cut legislation includes $55 billion in benefits for a host of industries"

WaPo offers this report.

Washington Times Profile of Kobach Campaign Against "Voter Fraud"

Here.

"Bloomberg is Accused of Hiding His Election Money"

The WSJ offers this report.

"Voter Confusion and the Single-Subject Rule: Prop. 26 as a Test-Case-in-Waiting, Part One in a Two-Part Series"

Chris Elmendorf has written this Findlaw column.

"Political Activity Revocations Reported; IRS Work Plan Outlines 501(c)(4) Focus"

BNA offers this report. A snippet: "More than 250 organizations were examined for alleged political activity during the 2004, 2006, and 2008 federal elections years, IRS Director of Exempt Organizations Lois Lerner said at a news conference....The examinations led to substantiation of allegations against more than half of the organizations, with most receiving only a warning, she said."

Earmark Hypocrisy?

Don't miss this NPR report.

"Citizens United and the Illusion of Coherence"--Final Version

You can now download the final version of my paper, which will be in print at 109 Michigan Law Review 581 (2011) next month, here at SSRN.

"Lightning in the Hand: Indians and Voting Rights"

Pam Karlan has posted this book review on SSRN (forthcoming Yale Law Journal. Here is the abstract:

This review essay discusses Laughlin McDonald's book, American Indians and the Fight For Equal Voting Rights (2010), to explore questions of disenfranchisement, dilution, and constitutional design. McDonald examines the barriers to full political equality faced by Indians in communities in five Western states and describes litigation under the Voting Rights Act of 1965 attacking these barriers. In many ways, the Indian voting rights cases resemble the cases brought, often a generation earlier, by black citizens in the South and Latino citizens in the Southwest. But as McDonald explains, Indians occupy a distinctive status within the American political order. Indians are citizens not only of the United States and the state where they reside but often also (and particularly in those regions where they are most likely to bring voting rights claims) of a separate sovereign as well -- their tribe. This fact has inflected both the history of Indian disenfranchisement and the course of litigation under the Voting Rights Act.

Part I describes the history of Indian disenfranchisement in light of their distinctive constitutional status. Indians’ exclusion from the political process reflected profound racism as pernicious and pervasive as the discrimination facing blacks in the South and Latinos in the Southwest. But it also involved complex constitutional and conceptual issues unique to Indians, who were excluded from citizenship, even after passage of the Fourteenth Amendment and who remained subject to distinct treatment even after citizenship was conferred. Part II then turns to the relatively recent vote dilution litigation that forms the heart of McDonald's book. Indian voting rights cases have followed a clear path blazed by earlier cases involving blacks and Latinos. Nevertheless, themes related to Indians' distinctive political status crop up within the litigation at various points. Finally, Part III looks beyond Indians’ claims under the Voting Rights Act to discuss issues related to internal tribal elections. Like other elections, these contests involve fundamental questions about enfranchisement and electoral design. Tribal answers to these questions sometimes depart dramatically from the rules governing federal, state, and local elections. I talk about two such departures, one related to voting by non-residents and the other related to nonequipopulous voting districts, to show how they that tie into ongoing debates extending far beyond Indian law.

Read Joe Miller's Opening Brief in Alaska Supreme Court

You can find it here. More related documents at this link.

"Ten Years After 'Bush v. Gore', Five Unfinished Election Reforms"

John Nichols writes at The Nation's blog.

"The Law of the Census: How to Count, What to Count, Whom to Count, and Where to Count Them"

Nate Persily has posted this draft on SSRN (forthcoming, Cardozo Law Review). Here is the abstract:

The Framers of the American Constitution viewed the decennial census as providing a certain rhythm to American politics. Every ten years a state's tax burdens and representation in the House of Representatives would change to reflect its share of the national population as revealed in the "actual enumeration," the manner of which Congress "shall by law direct." Much has changed since the first census, but the rhythm still remains. Perhaps unintended and unimagined by the Framers, however, is the rhythmic and ritualistic dance to the courtroom every ten years to argue over the census numbers themselves and the methods used to construct apportionment totals.

This Article examines the law of the census: specifically, how to count, what to count, whom to count, and where to count them. For the most part this Article draws on my experience and research concerning the use of census data in the redistricting process; however, many of the topics discussed apply to federal funding decisions as well. The Article begins by describing the most recent legal controversies involving census methods, particularly imputation and statistical adjustment. When one thinks of the "law of the census," these high-profile disputes probably come first to mind. In cases that have arrived at the Supreme Court at the beginning of each of the last three census cycles, undercounted cities and states have argued that census methods were deficient in that the procedures missed some people, double-counted others, or counted people that did not exist.

Second, this Article explores the legal implications of the decisions concerning what to include on the census form, paying particular attention to the topics of race and citizenship. For the second time, the 2010 Census allows respondents to check off more than one race, raising a host of interesting questions concerning the legal implications of alternative methods for categorizing the multiracial population. More significantly for the 2010 Census, the long form, which was previously asked of one sixth of the population, has been replaced by the yearly American Community Survey (ACS), distributed to 2.5% of households. The ACS is the only source for citizenship data from the census, raising questions about the reliability of citizenship estimates for purposes of VRA litigation.

Finally, this Article examines the related issues of who should be included in the census and where they should be counted. The section deals with special populations such as soldiers and other Americans living abroad, college students, the homeless, and prisoners. Prisoners, in particular, present an important case, as some have argued that the wholesale involuntary transfer of convicted criminals away from their communities toward more rural and often whiter areas has allowed for the padding of legislative districts in one part of a state at the expense of districts in other parts of a state. For the first time in 2011, the census will make data available in time for redistricting about the number of prisoners in each census block. Jurisdictions will now be able to subtract out prisoners from the census redistricting data file. Some states have even gone further and have reallocated prisoners to their pre-incarceration address for purposes of redistricting.

California Supreme Court Turns Down Relief in Top Two (Prop. 14) Case

That news comes via Horvitz & Levy's California Supreme Court blog, "At the Lectern."

Will Republican FEC Commissioners Start Failing to Enforce the Coordination Rules Too?

That's the possibility raised by this report. We'll have to wait and see when the materials become public.