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Abstract:
This article evaluates the emerging legal and political science scholarship created in the wake of the United States Supreme Court's decision in Bush v. Gore, the case that ended the 2000 Florida election controversy between supporters of George W. Bush and Al Gore. It surveys answers that scholars have given to four central questions: (1) Were the Supreme Court's majority or concurring opinions legally sound? (2) Was the Supreme Court's result justified, even if the legal reasoning contained in the opinions was unsound? (3) What effects, if any, will the case and the social science research it has spurred have on the development of voting rights law? (4) What does the Court's resolution of Bush v. Gore tell us about the Supreme Court as an institution?

2000 presidential election, voting technology, Supreme Court, election law

Abstract:
The moment for election reform inspired by the Supreme Court's decision in Bush v. Gore has come and gone. While some thought that election reformers could make lemons from lemonade from Bush v. Gore's equal protection holding, that possibility has not come to pass. Political factors have failed to respond well to the crisis in our election administration made obvious by the 2000 Florida voting fiasco.

Part I of this Essay, looking at punch card litigation in the Sixth and Ninth Circuits, explains that though some lower court judges still may look to the Bush v. Gore precedent as a means to force states to undertake election reform, that effort has been stymied thus far through the en banc process in the federal appellate courts.

Part II considers state and federal legislative and administrative responses to Bush v. Gore. Although vote counting technology has improved, states have made little progress otherwise in fixing their election administration problems. In fact, election administration reform has taken on an increasingly partisan direction. The debate over good election practices is taking place in the absence of good evidence, raising the possibility that some laws, most prominently new laws requiring voters to show identification at the polls, are being enacted for partisan advantage rather than to remedy any real problem.

Part III returns to the failure of the courts in the wake of Bush v. Gore. It begins by noting that the rise in election litigation that this country witnessed after Bush v. Gore continues unabated. It then uses the Supreme Court's recent opinion in Purcell v. Gonzales to show that the Court has failed to learn the lessons of Bush v. Gore. The Court's decision to issue a quick opinion, its casual empiricism, and its discouraging of pre-election litigation demonstrate that all members of the Court - both liberal and conservative Justices - are insufficiently sensitive to the kind of trouble their election administration opinions may cause. Part III concludes with an examination of Judge Posner's troubling Seventh Circuit opinion in Crawford v. Marion County Election Board upholding Indiana's voter identification law against a dissent by Judge Evans.

election administration, voter identification, Bush v. Gore, equal protection

Abstract:
In the 2004 presidential election, the United States came much closer to electoral meltdown, violence in the streets, and constitutional crisis than most people realize. Less than a 2% swing among Ohio voters toward Democratic candidate for President John Kerry and away from incumbent Republican President George W. Bush would have placed the Ohio - and national - election for president well within the margin of litigation, and it would have gotten ugly very quickly. Allegations of voter fraud and voter suppression were rampant on both sides, and even though Kerry conceded the election on the day after Election Day, public confidence in the U.S. system of American administration is now quite low. Previously unpublished data demonstrate that there is a growing partisan divide over views of the fairness of the election process.

The bad news from the story of Election 2004 is that things likely won't get better in 2008. As Part I details, the extreme partisanship and close division of the American electorate, coupled with the Electoral College system, make the possibility of another razor-close presidential election in one or more battleground states fairly likely. Add to that mix election administration incompetence and a widely decentralized system of election administration with a patchwork of inconsistent rules. What's worse, since Bush v. Gore, losing candidates have become more willing to resort to election law as part of a political strategy: the number of election-law related cases in the lower courts has risen dramatically compared to the period before the case. It all adds up to a recipe for electoral meltdown.

In Part II of this Article, I argue for three reforms that could significantly lower the risk of electoral meltdown. First, I advocate registration reform, in particular universal voter registration conducted by the government coupled with a voter identification program. There has been a wide partisan divide in the election administration debate between Democrats who have expressed concern about voter suppression and Republicans who have expressed concern about voter fraud. The registration reform I advocate can alleviate both of those concerns, minimize the potential for and political rhetoric regarding voter fraud, and eliminate a great majority of potential litigation surrounding presidential election administration

Second, I advocate a transition to nonpartisan election administration. The nonpartisan solution aims to create both the actuality and appearance of neutrality in election administration, thereby bolstering the public's faith in the process. Australia and Canada serve as good models for reform in this regard, though not necessarily their nationalization of election administration. I consider how to assure that U.S. election administrators are truly nonpartisan, and contrast arguments for nonpartisan election administration with calls for nonpartisan redistricting commissions and campaign finance enforcement.

Third, I discuss the role of the courts in minimizing electoral meltdown. The key here is to encourage courts to be more willing to entertain pre-election litigation and much more chary of entertaining post-election litigation. To the extent election administration problems can be recognized in advance, pre-election judicial review prevents future harm from occurring, rather than putting courts in the position of trying to undo the bad effects of a past harm. The costs of post-election review are large: the pressure put on courts to decide arcane election law questions when the outcome of an election - especially a presidential election - is huge, and the appearance of partisan decisionmaking is inevitable.

election administration, voter registration, equal protection, election law

Abstract:
The Supreme Court's recent decision in McConnell v. Federal Election Commission marks the culmination of an effort begun in 2000 to shift the Court's campaign finance jurisprudence in an important, though potentially dangerous, direction. Under pre-2000 jurisprudence, the Court (with one notable exception) upheld campaign finance laws only when the government demonstrated with a reasonable amount of evidence that the laws were at least closely drawn to prevent corruption or the appearance of corruption. The new jurisprudence, while purporting to apply the same anticorruption standard, does so with a new and extensive deference to legislative judgments on both the need for campaign finance regulation and the proper means to achieve it. There are signs that this shift is not merely the slipping of existing standards, however. Rather, it appears that the Court's jurisprudence is moving in the direction proposed by Justice Breyer, toward upholding campaign finance laws that promote a kind of political equality, what Justice Breyer termed a general participatory self-government objective.

This apparent shift might be welcome news for those who believe that the Court had been too restrictive of efforts to limit the role of money in politics in order to promote greater political equality. But the means by which the Court has undertaken the shift have proven problematic. The Court has continued to entertain the fiction that it is adhering to the anticorruption rationale of Buckley v. Valeo. The result is jurisprudential incoherence and a lead opinion in the most important campaign finance case in a generation that appears to pay only cursory attention to the First Amendment interests that must be balanced in evaluating any campaign finance regime.

Part I briefly surveys the pre-McConnell campaign finance jurisprudence, contrasting Buckley and the pre-2000 cases on the one hand, with the Court's three post-2000, pre-McConnell cases on the other. The recent trend, even before McConnell, is inconsistent with the Buckley rationale, at least as Buckley has been understood traditionally. The Court has replaced a general skepticism of campaign finance regulation with unprecedented deference to legislative determinations on both the need for regulation and the means to best achieve regulatory goals. Part II uses three examples from the McConnell joint majority opinion to demonstrate how the case fits into the new deferential post-2000 campaign finance jurisprudence. Part III points to signs apparent in the post-2000 jurisprudence and intensified in McConnell that the Court is moving toward endorsing the participatory self-government rationale for campaign finance regulation. Part IV argues that that if indeed the Court is moving toward endorsement of the participatory self-government rationale, it should do so more carefully. Thus far, the Court has given only lip service to the requirement that it balance competing interests and police campaign finance measures for legislative self-dealing. The part concludes by examining the danger that the Court eventually will eviscerate the distinction between contributions and expenditures without taking into account a key requirement of the participatory self-government rationale: the need for vibrant election-related participation by a wide group of non-governmental actors.

Abstract:
With the replacement of Chief Justice Rehnquist and Justice O'Connor with Chief Justice Roberts and Justice Alito, the pendulum has swung sharply away from Supreme Court deference to campaign finance regulation toward perhaps the greatest period of deregulation we will have witnessed since before Congress passed the important 1974 amendments to the Federal Election Campaign Act. In 2006, in Randall v. Sorrell, the Court for the first time struck down individual contribution limits in candidate elections as too low. In 2007's Federal Election Commission v. Wisconsin Right to Life (WRTL), the Court mostly eviscerated a key aspect of the McCain-Feingold law limiting corporate and union spending in federal elections. More importantly, a new Court majority has signaled its receptivity to many more challenges to campaign finance laws.

As Part I of this Article explains, as a matter of jurisprudence the Roberts Court's new approach to campaign finance regulation is just as incoherent as the prior New Deference approach, though moving in a decidedly different ideological direction. Likely in an effort to appear moderate or minimalist, Chief Justice Roberts and Justice Alito have made their deregulatory moves without expressly overturning existing precedent, leading Justice Scalia in WRTL to decry Chief Justice Roberts' and Justice Alito's faux judicial restraint, which Justice Scalia says obfuscat[es] the Court's sub silentio overruling of precedent. Justice Scalia is right (if impolitely blunt): given Chief Justice Roberts' and Justice Alito's views of the First Amendment and campaign finance regulation, there is no jurisprudential reason (though there were political reasons) for the two newest Justices not to join Justice Scalia's concurring opinion expressly calling for overruling of the precedent of deference.

As Part II details, however, the lack of jurisprudential consistency described in Part I will be inconsequential for the politics on the ground. Beyond incoherence, the WRTL principal opinion removes effective limits on corporate and union spending from their general treasury funds in elections. The only ads that may not be paid for with such funds are those that expressly advocate the election or defeat of candidates for office and those that are susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. There are debatable issues around the edges of interpreting this new test, but those disagreements are likely to be mostly of interest to academics and to those who will deliberately craft advertisements to further push the development of deregulatory jurisprudence. The new test will not pose a formidable obstacle for those corporations and unions that wish to run ads to influence elections. As a result, we could well see a significant rise in corporate election-related spending.

Finally, Part III looks at the next likely challenges to campaign finance regulation, and how the Roberts Court is likely to address them. Though the Roberts Court's faux minimalist approach allows for some variation in how lower courts will address campaign finance challenges in the near term, the lower courts' pre-McConnell experience demonstrates that many courts are likely to strike down ever more campaign finance regulations on First Amendment grounds. Those few appellate courts that uphold such laws likely will face Supreme Court reversal. I expect to see challenges to laws that have been upheld by the Supreme Court in the past, such as the ban on corporate and union spending from treasury on express advocacy, the McCain-Feingold ban on contributing soft money to political parties, federal individual campaign contribution limit, and laws requiring disclosure of electioneering communications. I also expect to see challenges to laws that the Supreme Court has not directly addressed, such as a challenge to the constitutionality of contribution limits to independent expenditure committees and 527 organizations. I believe many of these challenges will succeed.

campaign finance regulation, FEC v. Wisconsin Right to Life, Buckley v. Valeo

Abstract:
This article, prepared for a symposium on voting rights in the South Carolina Law Review, examines the future of election law in the Roberts Court. Even before the death of Chief Justice William H. Rehnquist and the announced retirement of Associate Justice Sandra Day O'Connor, election law scholars had declared that the Supreme Court had reached doctrinal interregnum. In the campaign finance arena, the Court's jurisprudence was becoming increasingly incoherent; voting rights law was said to be at law with itself; partisan gerrymandering claims in flux; and the question of Supreme Court oversight of the nuts-and-bolts of elections after Bush v. Gore a big mystery.

With the change of two Justices on the Supreme Court, exit from doctrinal incoherence and uncertainty becomes possible. The replacement of Chief Justice Rehnquist with new Chief Justice John Roberts and the replacement of Justice O'Connor with a new Justice appointed by President Bush could provide an opening for major changes in Supreme Court election law doctrine. This is especially true with Justice O'Connor's departure, because she has held the swing vote in key election law cases.

What sort of changes should we expect from the Roberts Court? Making predictions is exceedingly difficult when the swing votes likely will be held by those who have not expressed (or not expressed recently) views on these subjects, and concern for respecting (even wrong-headed) precedent could prove a strong force. And Justices' views certainly may change over time. Still, I work under the assumption that a conservative president who had apparently committed himself to appointing Justices in the mold of Justices Thomas and Scalia is unlikely to appoint Justices who in fact move the Court to the left, and could well move the Court to the right in key election law cases.

The result is that 5-10 years from now, the ground rules for American political competition could undergo a major change. Within the next decade, we could well see deregulation of campaign financing, a limiting of Congressional power to impose national solutions to problems of minority voting rights, and an upholding of state power to redistrict for partisan gain and impose increasingly draconian election administration tools enacted in the name of fraud prevention. The ability of states to manipulate election rules for partisan gain may present the greatest danger, as the Court exits from that corner of the political thicket. For those who look to courts for the promotion of political equality, the signs are not encouraging.

election law, Supreme Court, Chief Justice Roberts, campaign finance, Bush v. Gore, Voting Rights Act, Partisan Gerrymandering

Abstract:
This article considers a single question: does Congress have the power to renew the Voting Rights Act's preclearance provisions, set to expire in 2007? Beginning with South Carolina v. Katzenbach (1966), the United States Supreme Court has upheld preclearance as a permissible exercise of congressional enforcement power. These cases, however, mostly predate the Supreme Court's New Federalism revolution. As part of that revolution, the Court, in a series of recent cases has greatly restricted the ability of Congress to pass laws regulating conduct of the states under its enforcement powers granted in Section Five of the Fourteenth Amendment, which the Court has read as coextensive with its enforcement powers under the Fifteenth Amendment. Moreover, in Board of Trustees v. Garrett (2001), the Court made clear that it will search for an adequate evidentiary record to support a congressional determination that states are engaging in unconstitutional conduct so as to justify congressional regulation of the states. Some of that clarity on the evidentiary question disappeared in the Court's 2003 decision, Nevada v. Hibbs, and even greater uncertainty has been created by the Court's 2004 decision, Tennessee v. Lane.

Part I of this article surveys the legal landscape through the developments in Garrett facing those who wish to defend renewed preclearance as an appropriate exercise of congressional power under the Fourteenth or Fifteenth Amendments.

Part II then turns to the "Bull Connor is Dead" problem: Most of the original racist elected officials are out of power, and those who remain in power (along with any new elected officials who either intend to discriminate on the basis of race or who otherwise would care less about a discriminatory effect in a change in voting practices or procedures on a protected minority group) have for the most part been deterred by preclearance. Thus, there is not much of a record of recent state-driven discrimination that Congress could point to supporting renewal. The question of how much racial discrimination in voting practices there would be today if we suddenly eliminated preclearance is almost too speculative to answer. It is difficult to see how Congress may prove that preclearance remains necessary under the Garrett evidentiary standard.

Part III then then explains how in two recent cases on Congressional power, Nevada v. Hibbs and Tennessee v. Lane, the Supreme Court appears to have backed away from the strict evidentiary standard imposed in Garrett. These cases increase the chances that the Court would hold that Congress has the power to reenact section 5's preclearance provisions, particularly given Justice Scalia's separate opinion in Lane in which he indicated his new position that Congress has broad latitude to pass legislation aimed at combating racial discrimination. In addition, the Supreme Court's recent opinion in Georgia v. Ashcroft, construing the statutory standard for granting preclearance, takes more pressure off constitutional challenges to a renewed preclearance provision.

Part IV concludes in a more speculative vein with a look at an alternative basis for congressional power to reenact preclearance: the Guarantee Clause.

Abstract:
Beginning in the 19th century and through the 2008 presidential elections, American state courts have consistently applied a rule of thumb, which I term the "Democracy Canon," to interpret certain state election statutes. According to one early formulation, "[a]ll statutes tending to limit the citizen in the exercise of [the right of suffrage] should be liberally construed in his favor." Despite its pedigree, the canon thus far has been ignored by Legislation and Election Law scholars and appears to have no independent vitality in federal courts. Moreover, the canon has played an unrecognized role in some of the most contentious election law cases of modern times, including Bush v. Gore.

Part I briefly traces the history and longstanding use of the Democracy Canon in American courts. Part II defends the Democracy Canon. It argues that the canon serves two important purposes. First, as with some other substantive canons, the Democracy Canon can help protect an underenforced constitutional norm. In this case, the canon protects constitutional equal protection rights in voting, rights which courts for various reasons have declined to protect directly through constitutional litigation. Second, the Democracy Canon is a preference-eliciting mechanism. As a clear statement rule, the canon requires the Legislature to take affirmative steps to express its intent to limit voter enfranchisement only when justified by other important interests.

Part III explores the politicization issue arising from use of the Democracy Canon through a closer examination of the New Jersey Supreme Court's controversial opinion in New Jersey Democratic Party v. Samson, allowing Democrats to replace a U.S. Senate candidate's name on the ballot close to election time. Part III uses Samson to illustrate that the use of canons in election law cases is bound to be more controversial and high-salience than their use in garden-variety statutory interpretation cases. In the context of a hot-button election law case, a court's use of a substantive canon may appear illegitimate and result-oriented. Moreover, because of the political stakes, judges may subconsciously rely on the canon in ways consistent with their political preferences. The best way to deal with the latter problem is through ex ante clear drafting by legislatures.

Finally, Part IV examines constitutional questions arising when a federal court is asked to overturn a state court's use of the Democracy Canon. When a state court construes a state statute to a question in a federal election (as in Samson or Palm Beach County Canvassing Board) it runs the risk of violating either Article II of the U.S. Constitution (vesting in each state legislature the power to set the rules for choosing presidential electors) or Article I, section 4 (vesting in each state legislature the power to set the rules for choosing members of Congress, at least to the extent Congress has not set such rules). Contrary to the position of the Bush v. Gore concurring Justices, this Article contends that use of the Democracy Canon to construe state statutes dealing with presidential or congressional elections does not violate Article II or Article I, section 4. Instead, the long-standing nature of the Democracy Canon and the values it supports give state courts ample authority to construe state election statutes covering federal elections in light of the Canon. Only when a state court relies upon the canon in a way that counters longstanding jurisprudence or practice should a federal court consider intervening in a state court election case on constitutional due process grounds.

legislation, statutory interpretation, substantive canons, Bush v. Gore, New Jersey Democratic Party v. Samson

Abstract:
In 1986, the Supreme Court held that it would entertain claims that a legislative decision to redistrict legislative seats to give unfair advantage to one major political party over the other could violate the United States Constitution's Equal Protection Clause. But the Court's fractured decision in Davis v. Bandemer that such "partisan gerrymandering" claims were justiciable resulted in virtually no successful claims in the lower courts.

In Vieth v. Jubelirer, 124 S. Ct. 1769 (2004), the Court revisited the issue. The case was a 4-1-4 split. Four Justices signed a plurality opinion stating the view that partisan gerrymandering claims should be considered nonjusticiable because of the absence of a "judicially manageable" standard for separating permissible from impermissible consideration of party affiliation of voters in the redistricting enterprise. Four Justices would have adopted one of three invigorated tests to police partisan gerrymandering. Justice Kennedy, writing only for himself, agreed with the four dissenters that partisan gerrymandering cases remain justiciable. But he also agreed with the four Justices in the plurality that the Vieth plaintiffs' claim must fail because no one has articulated thus far judicially manageable standards for partisan gerrymandering claims. He suggested a standard might emerge from historical discussions of districting practices, better computer technology, or shifting to a First Amendment analysis.

Part I of this Article surveys the five opinions in Vieth, focusing on Justice Kennedy's pivotal opinion. Part II explains why Justice Kennedy is unlikely to find a judicially manageable standard for partisan gerrymandering in history, technology, or the First Amendment, given his rejection of vote dilution, expressive harm, conflict of interest, and improper motive tests proposed by the Vieth plaintiffs and dissenters. Finally, Part III endorses Justice Kennedy's decision to leave the door open to future partisan gerrymandering cases. It explains that the judicial manageability debate in Vieth conflates two separate concerns: one about consistency of result across the courts and a second about the justifiability of a standard for judging partisan gerrymandering claims. The consistency of result concern is overblown, because the Court could rather easily come up with an easily administrable partisan gerrymandering standard. But the Court should refrain from coming up with such a standard until it could be justified by an emerging social consensus regarding proper and improper consideration of voter party identification in redistricting. If consensus emerges, the Court may embrace it. Until then, the matter should be left to the political processes, which have a number of tools to control egregious partisan behavior.

Abstract:
This article, part of a symposium on Election Law and the Roberts Court in the Ohio State Law Journal, considers the Supreme Court's recent decision in Randall v. Sorrell (2006) striking down Vermont's campaign expenditure and contribution limits. The Supreme Court's campaign finance jurisprudence before Randall was marked by swings in doctrine and general incoherence. At first glance, the plurality opinion in Randall appears to add a level of coherence to campaign finance law by judging the constitutionality of such laws through an assessment of the relationship between campaign contribution limits and political competition. Alas, the appearance of coherence is illusory, and there is little reason to believe Randall marks a significant move by the Courts to embrace the political markets approach.

As Part II explains, the Court in Randall has not embraced competition as the organizing principle for analyzing the constitutionality of all campaign finance laws or election laws. The focus on competition - which garnered the votes of only three Justices, and one of the three noncommittally - appears to be the outcome of a compromise between Justice Breyer, who wanted to preserve as much of existing doctrine as possible against a deregulationist trend, and the two newest Justices on the Court. Existing Supreme Court election law doctrine, including its recent partisan gerrymandering jurisprudence, also rejects the anticompetition principle as a means of deciding election law cases.

Part III then turns from external coherence to the internal coherence of the competition test for low contribution limits, finding the test less predictable and coherent than its technocratic nature suggests. Following Randall, it appears that challenges to low contribution limits will turn - or at least appear to turn - upon fact-intensive political science expert testimony about the amount of money necessary to run a competitive race in the relevant jurisdiction. But such testimony often will be speculative when it comes to whether enough money may be raised to insure a competitive race. Court decisions could well turn upon a thin credibility determination to be made by the court, a determination that may depend upon each judge's predisposition to favor or oppose the particular campaign finance regulation.

Part IV advocates that courts engage in a careful and honest balancing that gives considerable deference to the value judgments made by states in enacting campaign finance laws, but then use close scrutiny to make sure the measure is carefully drawn to meet those goals. This kind of honest balancing was impossible in Randall because of the Court's ostensible rejection of the political equality rationale for campaign finance regulation. The real question the Randall Court should have asked is whether the Vermont law was closely drawn to promote political equality and, if so, whether the costs to individuals and groups who wanted to mobilize for political action were too great to allow the law to go forward despite its gains in promoting political equality.

campaign finance, election law

Abstract:
This Article focuses on the role, if any, that a legislative body's bad intent in passing election laws should play when courts assess the constitutionality of those laws. For purposes of this Article, by bad intent in the election law area, I mean a legislative intent to protect incumbents, a political party, or the two major political parties, from political competition. I argue that, despite the arguments of some leading election law scholars, including Professor Richard H. Pildes, proof of such bad intent should be neither necessary nor sufficient for an election law challenge to succeed, though it should be relevant in getting courts to take a hard look at election laws. Rather than focus on intent, courts should primarily examine the effect of election laws on the rights of individuals and groups, and, when the effects are severe enough, carefully balance those bad effects against the stated and proven interests of the state in the election law.

Part I of this Article offers three reasons why proof of bad legislative intent should not be necessary to strike down an election law. First, bad election laws can emerge even when the legislature has noble intentions. Second, bad legislative intent sometimes is going to be difficult to prove. Legislators often will have an incentive to hide incumbency or party-protecting intent. Third, a rule premised on proof of bad legislative intent will be easy to circumvent, and could quickly become useless rule for policing anti-competitive election laws.

Part II argues that proof of bad legislative intent should not be sufficient for courts to strike down election laws on constitutional grounds because the test will allow for more arbitrary and pretextual judicial decisionmaking. The risk exists because it is sometimes difficult to draw the line between good and bad legislative intent, even among the class of laws that appear to be driven, at least in part, by anticompetitive aims.

Part III then discusses my alternative to an intent-based test. I argue for a careful balancing of asserted state interests against the rights of individuals and groups to engage in collective action for political purposes. Although courts have purported to engage in balancing, balancing has been tepid (or even a sham) and its protections against legislative self-dealing largely illusory. I offer recent examples of the courts' weak balancing efforts. Courts should engage in closer means-ends scrutiny.

Finally, Part IV uses the analysis developed in the first three parts to offer some very tentative thoughts about how the arguments against reliance on bad legislative intent in the election law context might apply to other constitutional claims, such as Establishment Clause, free speech, and race discrimination claims.

election law, legislative intent, ballot access, campaign finance, voting rights, Munro v. Socialist Workers Party

Abstract:
The Supreme Court's per curiam majority opinion in Bush v. Gore held that a state violates equal protection when its fails to have uniform standards for the recounting of votes during a statewide election contest. Part I of this Article argues that although some have heralded the opinion as the (perhaps unintended) dawn of a new era in the jurisprudence of equal protection in elections, there are good reasons for doubting that the Supreme Court majority intended anyone to take their equal protection holding seriously. Language in the per curiam opinion limits it to the facts of the case, or, at most, to cases where jurisdiction-wide recounts are ordered. Moreover, the Court's own analysis was superficial. It failed to explain or justify its large extension of precedent; it ignored serious standing questions; and, most importantly, the Court appeared to speak the language of strict scrutiny but apply something much less than strict scrutiny. Finally, the kind of equal protection claim favored by the conservative justices in the Bush v. Gore majority is a strong departure from the usual equal protection jurisprudence they favor.

Part II of this Article considers not whether the Court meant what it said, but rather what would be the consequences if the Court indeed meant what it said. The equal protection jurisprudence of Bush v. Gore moves election law jurisprudence to an uncharted third level of political equality - equality in the procedures and mechanisms used for voting. Part II explores a range of election law cases that may be subject to a "third level" political equality claim. It concludes that, if the case were taken seriously, Bush v. Gore would have great precedential value in changing a host of voting procedures and mechanisms, particularly when challenged prospectively.

Part III of this Article explores the benefits, costs, and implications of expanding equal protection to such third-level claims. The benefits of the approach are fairly obvious: a precedent requiring scrupulous equality in the holding of elections will increase resources used to conduct elections. But expanding political equality to the third level would be a mixed blessing. Putting aside costs, three concerns arise with extending equal protection jurisprudence to the nuts-and-bolts of elections. First, third-level claims provide a new reason and a pretext for federal courts to nullify state and local election results. Second, third-level claims undermine federalism. Third, third-level claims create a disincentive for jurisdictions to experiment with new methods of voting, such as internet voting.

Finally, it is worth thinking about the doctrinal implications of extending equal protection jurisprudence to the third level. It is unclear whether extension of equal protection to the third level differs meaningfully from arguments calling for greater political equality in terms of electoral structures (such as Justice Marshall's argument in his dissent in Mobile v. Bolden) and financing election campaigns (such as the arguments of Jamin Raskin and John Bonifaz).

Abstract:
This article, prepared for a voting rights symposium to appear in the Howard Law Journal, considers congressional power to ban state felon disenfranchisement laws. Although courts in other countries have held that the practice of denying the right to vote to felons (or ex-felons) violates constitutional guarantees, the U.S. Supreme Court has held that the practice usually does not violate the U.S. Constitution. Current controversy in lower federal courts swirls over whether section 2 of the Voting Rights Act may bar certain state felon disenfranchisement laws. This article looks beyond that controversy to the constitutional question: If Congress passed a clear law barring the state practice of disenfranchising felons (or ex-felons), would the Supreme Court uphold such a law as a permissible exercise of Congressional power to enforce the 14th or 15th amendments? The most promising, but still quite uncertain, basis for congressional power is that a felon disenfranchisement ban enforces equal protection guarantees against race discrimination under the 14th amendment and enforces the right to vote free of race discrimination under the 15th amendment. In particular, the federal government could argue that it is intentional past (and potentially present) race discrimination in this country that leads to cycles of poverty in minority communities, and that such poverty makes it more likely that members of these communities will be arrested. In addition, the government could argue that state discrimination in the administration of the criminal justice system makes it more likely that minorities will be convicted of felonies and therefore disenfranchised. The article concludes that in light of the Supreme Court's new federalism jurisprudence it is uncertain whether the Supreme Court would uphold such a law on this basis as a permissible exercise of congressional power, leaving state legislatures as the prime locus for changes to felon disenfranchisement laws.

voting rights, election law, felon disenfranchisement

Abstract:
Financing a presidential party nomination campaign has been a complicated affair for some time: candidates face contribution limits, source limitations, extensive reporting requirements, and, for those candidates opting into the voluntary public financing program, a strict spending limit. Moreover, the campaign financing system is not only complex but dynamic. The system recently has undergone two fundamental changes: (1) the voluntary public financing system, with its accompanying strict spending limit, is no longer an option for serious presidential candidates, who would be grossly outspent by nonparticipating rivals; and (2), the campaigns have come to rely ever more upon campaign finance bundlers, who collect maximum contributions (currently set at $2,300) from friends and associates, and upon "micro-donors," who give less than $200 in the aggregate to a primary campaign. These changes arose because of the changing legal rules governing money in presidential elections and a dramatic lowering of the costs of campaigning facilitated by the Internet. They may alter both the nature of presidential campaigns as well as the types of candidates who are viable to become general election candidates.

This paper has three parts. First, it describes the two recently-emerging fundamental changes in the campaign financing system for presidential primary candidates. Second, it explains why these changes have emerged now. Finally, it evaluates whether these changes are likely to be positive or negative from the standpoint of political equality and in terms of the quality and type of presidential candidates who win their parties' nominations.

Abstract:
Much of the current debate over the preclearance provisions contained in section 5 of the Voting Rights Act concerns the important policy question whether Congress should renew it. This paper turns to a question in the debate that logically precedes but in practical terms would follow (though court challenge) a congressional decision to reenact section 5: does Congress have the power to do so?

Beginning with South Carolina v. Katzenbach (1966), the United States Supreme Court has repeatedly upheld section 5 and other provisions of the Act as permissible exercises of congressional enforcement power. These cases, however, predate the Supreme Court's "New Federalism" revolution. As part of that revolution, the Court, in a series of recent cases has greatly restricted the ability of Congress to pass laws regulating conduct of the states under its enforcement powers granted in Section Five of the Fourteenth Amendment, which the Court has read as coextensive with its enforcement powers under the Fifteenth Amendment. Moreover, in Board of Trustees v. Garrett (2001), the Court made clear that it will search for an adequate evidentiary record to support a congressional determination that states are engaging in unconstitutional conduct so as to justify congressional regulation of the states. Some of that clarity on the evidentiary question disappeared in the Court's 2003 decision, Nevada v. Hibbs.

Part I of this chapter surveys the background legal landscape facing those who wish to defend anticipated preclearance reenactment as an appropriate exercise of congressional power under the Fourteenth or Fifteenth Amendments.

Part II then turns to application of the new federalism cases to the question of congressional power to reenact the preclearance provisions. The evidentiary requirement imposed in these new federalism cases creates significant hurdles for a court to uphold a reenacted section 5, even though, under the recent Hibbs case, the evidentiary burden on Congress will be slightly alleviated because a renewed section 5 would combat racial discrimination.

In 1965 and even in 1982 Congress could point to significant acts of intentional racial discrimination by covered states to support preclearance provisions. Today, Congress would be hard-pressed to find widespread evidence of such discrimination. Some commentators have looked to Department of Justice preclearance statistics to find sufficient evidence of a potential for constitutional violations to support section 5 reenactment by Congress. A closer look at the DOJ preclearance statistics, however, offers little support for those who wish to build an evidentiary record to support reenactment of section 5. Other commentators have looked to private acts of discrimination as supporting congressional power to reenact preclearance provisions. The argument, though creative, probably cannot bear the weight that commentators have put on it.

Part III concludes in a more speculative vein with a look at an alternative basis for congressional power to reenact preclearance: the Guarantee Clause. Article IV of the Constitution provides that the United States shall guarantee to each state a Republican form of government. It is an open question whether Congress could reenact the preclearance provisions under the Guarantee Clause and, more provocatively, by doing so insulate the provisions from challenge in the courts under the theory that Guarantee Clause cases raise non-justiciable political questions.

Abstract:
Although scholars have explored innumerable aspects of the Supreme Court's landmark opinion in the 1976 campaign finance case of Buckley v. Valeo, 424 U.S. 1 (1976), one area left virtually unexplored is the case's drafting history. This article provides a chronology of the internal deliberations of the Court from the time of the post-argument conference to the issuance of the decision on January 30, 1976. It concludes with some thoughts on what the drafting history tells us about the Court's rejection of the equality rationale for campaign finance regulation.

The drafting history reveals the following interesting points about the case:
(1) Justice Stewart wrote the crucial portion of the opinion upholding campaign contribution limits but striking down limits on campaign expenditures. Justice Powell wrote the section on campaign finance disclosure, Justice Brennan wrote the section on the public financing provisions for presidential elections, and then-Justice Rehnquist wrote the section on the unconstitutionality of the manner in which the Federal Election Commission was constituted. Chief Justice Burger wrote the introduction to the opinion; (2) Initially, Justices Brennan and Marshall agreed with Justice White that the provision limiting to $1,000 independent expenditures supporting or opposing candidates for federal office was constitutional. These Justices appeared to change their minds out of concern over the law's vagueness, not because of a belief that the First Amendment prohibited limits on campaign expenditures; (3) Footnote 52 of the opinion, which has provided the basis for the rise of "soft money" and "issue advocacy," came late in the drafting process; and (4) The Court seemed well aware the new law, as it interpreted it, would not be very effective and even used this ineffectiveness as a reason to strike down the expenditure limits. But the Court seemed unaware that the late-added footnote 52 would have such an impact on electoral politics.

Abstract:
The unprecedented California recall election of 2003 also spawned an unprecedented amount of litigation over the rules for the recall itself. Much of that litigation was patently frivolous, an attempt to throw up as much as possible against the recall to see what would stick in the interest of delaying or scuttling the recall. The recall litigation became part of what I have termed election law as political strategy.

But some of the litigation had merit. This paper focuses on one of the meritorious cases, litigation over the use of punch card ballots in Los Angeles and a handful of other California counties in the recall election. Plaintiffs' argument was that the selective use of punch card voting technology, with its extraordinarily high error rates, violated the equal protection rights of voters under the United States Supreme Court's decision in Bush v. Gore (2000). Bush v. Gore was the case that ended the recount of votes in Florida following the November 2000 presidential election.

A federal district court judge rejected the argument, but a three-judge panel of the Ninth Circuit accepted it, ordering a delay in the election until the counties could replace their punch card machines with other technology. A larger (en banc) panel of the Ninth Circuit quickly reversed the panel ruling, and the recall election took place as scheduled.

In a recent California Law Review article, Professor Vikram Amar was very critical of the original Ninth Circuit panel's decision to delay the recall, and even more critical of the Supreme Court's decision in Bush v. Gore. Indeed, in a recent roundup of the top ten lessons of the recall, Amar lists "Bush v. Gore sucks" as his number one lesson about the recall: the Supreme Court senselessly chose not to be explicit about things in Bush v. Gore, thereby allowing courts such as the Ninth Circuit panel to dubiously interpret the decision as a reason to delay the recall election.

In this paper, I take issue with Amar. Far from sucking, the Bush v. Gore opinion had the salutary purpose of focusing the attention of the public, elections officials, and - as in the case of the recall - the courts, on some important yet neglected issues of the nuts-and-bolts of democracy. The debate the case has spawned, and the reforms it has started in motion, have thus far had a salutary effect on the Nation's democracy, even if that may not have been the intent of the Supreme Court Justices who decided the case. In Part I, I describe the California punch card litigation in the context of the Bush v. Gore precedent. In Part II, I defend the original three-judge panel's opinion as a permissible application of Bush v. Gore, and I explore more generally how Bush v. Gore has affected the debate over the nuts and bolts of our democratic process.

Abstract:
Many commentators trace the beginning of the end of the political question doctrine to the Supreme Court's 1962 Baker v. Carr decision. In Baker, as Mark Tushnet has explained, the Court domesticated the doctrine by reducing it from an amorphous prudential doctrine to a set of six legal rules. If the political question doctrine continues to have any vitality, it is in the area of foreign affairs and in cases raising "Guarantee Clause" claims. I ignore the foreign affairs area and focus on the Guarantee Clause. Cases raising Guarantee Clause claims now stand on the cusp of justiciability.

In Part I, I argue that there is good reason to believe that the Court will soon consider claims arising under the Guarantee Clause. First, as a textual matter, the argument for non-justiciability is weak. Second, the prudential rationale offered by the Court in Baker v. Carr for not deciding Guarantee Clause claims - that the Guarantee Clause is "not a repository of judicially manageable standards" - has failed to hold up in the face of the Court's development of manageable standards in other areas of the law. Thus, all that stands in the way of justiciability is weakly-reasoned (though longstanding) precedent.

In Part II of this Chapter, I argue that the Court should nonetheless continue to treat cases raising Guarantee Clause claims as non-justiciable. The most likely claims advanced under the Clause would challenge the initiative process (or particular initiatives) and provide additional arguments for Court intervention in election law, particularly voting rights, disputes. The success of such claims would further entrench courts in political regulation with little benefit and at a great potential cost. It also may have unintended consequences for those who see the clause as the next means of advancing a liberal activist agenda on the Court - it may just as well promote a conservative activist agenda. Thus, the history of the Guarantee Clause could well parallel the history of the Equal Protection Clause from its liberal use in post-Baker cases to more conservative uses in cases like Bush v. Gore. I conclude that both liberal and conservative Court Justices concerned about the over-involvement of the courts in political regulation would do well to keep the political question doctrine on life support, if only to insure that Guarantee Clause claims remain non-justiciable.

Abstract:
This Article, forthcoming in a symposium in the Hastings Constitutional Law Quarterly, examines the question of the constitutionality of changes to the Electoral College accomplished through the initiative process; it does not discuss the merits of either the Electoral College or reforms that have been proposed to change it (whether through the initiative process or otherwise). Part I gives the brief history of attempts to use the state initiative process to change the rules for choosing presidential electors, beginning with Colorado's Amendment 36, which would have divided the state's electoral votes proportionally but failed to pass in the 2004 election, to the current California Electoral College measure, which would divide electoral votes mostly by congressional district and whose fate is unclear as of this writing. It also explains that even if the California measure fails to qualify or pass, this issue could well arise in a future election because of general dissatisfaction among segments of the population with the Electoral College system for choosing the President. Part II turns to the constitutional question whether initiated changes to rules for choosing presidential electors violate Article II. It offers an analysis of the question based upon the text of Article II, relevant Supreme Court caselaw involving Article II, as well as Articles I and V, and the possible purposes behind Article II's use of the term Legislature. It concludes that the issue of the constitutionality of initiated Electoral College reform is a difficult one to resolve about which reasonable jurists will differ, and because of that difficulty resolution by the Supreme Court could appear to be colored by the political considerations of who could lose or win by resolution of the question raising the specter of another Bush v. Gore. Part III concludes with two strategies that can help avoid the Article II question from becoming the next Bush v. Gore. First, courts should be more willing to engage in pre-election review of such measures, so that these issues can be resolved before, rather than after, an election. Second, Congress should consider amending the Constitution with an election administration amendment that would impose a two-year waiting period before any state's changes to Electoral College rules may go into effect. An amendment changing the Electoral College itself would be difficult to pass through Congress and the states. But my proposal is a neutral amendment ex ante that could decouple the consideration of the merits of Electoral College reform from the short term political advantages that could come from such a change.

Electoral College, Article II, initiatives, Bush v. Gore

Abstract:
At the (apparent but not real) end of the October 2008 Supreme Court term, the Court took diametrically opposing positions in a pair of sensitive election law cases. In Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), the Court avoided deciding a thorny question about the constitutionality of a provision of the Voting Rights Act. The Court did so through a questionable application of the doctrine of “constitutional avoidance.” That doctrine (also known as the “avoidance canon”) encourages a court to adopt one of several plausible interpretations of a statute in order to avoid deciding a tough constitutional question. In NAMUDNO, however, the Court - without objection from single Justice - embraced a manifestly implausible statutory interpretation to avoid the constitutional question.

A week after NAMUDNO issued, the Court announced it would not be deciding a campaign finance case, Citizens United v. Federal Election Commission, by the Court’s summer break as scheduled. Instead, the Court set the case for reargument in September, expressly asking the parties to brief the question whether the Court should overturn two of its precedents upholding the constitutionality of corporate spending limits in candidate elections. The constitutional issue had been abandoned by the law’s challengers in the Court below and was not even mentioned in the challengers’ jurisdictional statement. Moreover, the constitutional question could easily be avoided through a plausible interpretation of the applicable campaign finance statute. Thus, in Citizens United, the Court gave itself an opportunity to apply a little-noticed principle of anti-avoidance: the Court will eschew a plausible statutory interpretation in order decide a thorny constitutional question. It remains to be seen whether the Court will actually decide the constitutional question when issues its decision. But the reargument order itself embraced the anti-avoidance principle: the Court went out of its way to make a thorny constitutional question more prominent by scheduling briefing and argument on it despite a plausible statutory escape hatch.

What explains the divergent approaches in the two cases, and what does the divergence tell us about the Roberts Court? In this Article, I identify the evidence supporting three competing explanations for the Court’s actions, ranging from the most charitable to least charitable reading of the Court’s motives.

First, the fruitful dialogue explanation posits that the Court will use constitutional avoidance only when doing so would further a dialogue with Congress that has a realistic chance of actually avoiding constitutional problems through redrafting. Second, the political legitimacy explanation posits that the Court uses the constitutional avoidance doctrine when it fears that full-blown constitutional pronouncement would harm its legitimacy. Third, the political calculus explanation posits that the Court uses constitutional avoidance and similar doctrines to soften public and Congressional resistance as the Court’s movement of the law in its preferred policy direction.

While it is impossible to know which of these explanations is correct, the developments of the October 2008 term suggest Court watchers should continue to keep an eye on use of the constitutional avoidance doctrine for broader clues about the Roberts Court. Whether intended or not, the use of constitutional avoidance and anti-avoidance allows the Court to control the speed and intensity of constitutional and policy change.

Abstract:
Explaining the efficiency of laws against theft is a more complicated matter than it first appears to be. Fred McChesney (1993), responding to a 1990 article by Lewin and Trumbell, argues that theft is "inevitably" inefficient when the indirect costs of the activity are considered. McChesney traces his analysis to a 1967 paper by Gordon Tullock, in which Tullock discussed the inefficiency of theft, rent-seeking, and monopolies. Richard Posner (1985; 1992) provides a different line of reasoning that focuses on the direct costs of theft. He claims that, because the market is adept at transferring goods to their highest valued use, those who bypass the market -- thieves -- on average value the goods they steal less than the owners. Neither analysis of theft, however, is entirely sufficient to explain its inefficiency.As Part I of this paper explains, the Tullock-McChesney resolution is flawed. Notwithstanding the existence of indirect costs, theft is efficient if incurring those costs avoids incurring larger transaction costs from a voluntary sale and the thief values the goods more than the owner does. More generally, an efficiency analysis requires comparing the indirect costs of legalized theft with the transaction costs of market sales. In Part II, we make this comparison. Unsurprisingly, theft is inefficient, though for more complex and less certain reasons than the Tullock-McChesney thesis suggests: because indirect costs *usually* would exceed transaction costs and because indirect costs *often* would not avoid incurring transaction costs. The surprising result of our model is that Posner's theft analysis, while correct in a static model, turns out not to matter much to the dynamic inefficiency of theft. In equilibrium, very little of the costs of theft would be from transfers to lower valued users. Thus, we ultimately agree with Tullock and McChesney that the real problem with theft is its indirect costs. Finally, in Part III we discuss how this analysis bears on the criminal rules that define when involuntary takings constitute theft.

Abstract:
Explaining the efficiency of laws against theft is a more complicated matter than it first appears to be. Fred McChesney (1993), responding to a 1990 article by Lewin and Trumbell, argues that theft is "inevitably" inefficient when the indirect costs of the activity are considered. McChesney traces his analysis to a 1967 paper by Gordon Tullock, in which Tullock discussed the inefficiency of theft, rent-seeking, and monopolies. Richard Posner (1985; 1992) provides a different line of reasoning that focuses on the direct costs of theft. He claims that, because the market is adept at transferring goods to their highest valued use, those who bypass the market -- thieves -- on average value the goods they steal less than the owners. Neither analysis of theft, however, is entirely sufficient to explain its inefficiency.

As Part I of this paper explains, the Tullock-McChesney resolution is flawed. Notwithstanding the existence of indirect costs, theft is efficient if incurring those costs avoids incurring larger transaction costs from a voluntary sale and the thief values the goods more than the owner does. More generally, an efficiency analysis requires comparing the indirect costs of legalized theft with the transaction costs of market sales. In Part II, we make this comparison. Unsurprisingly, theft is inefficient, though for more complex and less certain reasons than the Tullock-McChesney thesis suggests: because indirect costs *usually* would exceed transaction costs and because indirect costs *often* would not avoid incurring transaction costs. The surprising result of our model is that Posner's theft analysis, while correct in a static model, turns out not to matter much to the dynamic inefficiency of theft. In equilibrium, very little of the costs of theft would be from transfers to lower valued users. Thus, we ultimately agree with Tullock and McChesney that the real problem with theft is its indirect costs. Finally, in Part III we discuss how this analysis bears on the criminal rules that define when involuntary takings constitute theft.

Abstract:
Supreme Court precedent dating back to the 1970s and 1980s precludes state and local jurisdictions from limiting financial contributions to committees formed to support or oppose ballot measures or from barring corporate expenditures in ballot measure campaigns. These precedents emerged from the Supreme Court at a time of its greatest hostility to campaign finance regulation, when it viewed such laws as impermissibly impinging on the rights of free speech and association guaranteed by the First Amendment. These precedents are ripe for reexamination in light of the Supreme Court's new-found deference to campaign finance regulation, culminating in 2003's McConnell v. Federal Election Commission, a case upholding the major provisions of the Bipartisan Campaign Reform Act of 2002.

This Article considers three potential ballot measure campaign finance regulations and their likelihood of passing constitutional muster under the more recent precedents: a law limiting contributions to ballot measure committees controlled by officeholders; a law limiting contributions to all ballot measure committees; and a law limiting expenditures in ballot measure campaigns by corporations and labor unions. Although all three proposed laws pretty clearly would have been struck down by the Supreme Court in earlier decades, they have a surprisingly good chance of passing muster today.

One (obvious) purpose of this Article is to consider constitutional questions over ballot measure limits that courts inevitably will confront in coming years. But a second and equally important purpose is to use this analysis to consider the role that evidence plays in the Court's campaign finance jurisprudence. The Court's demand for evidence in campaign finance cases is shifting and imprecise. In fact, evidentiary analysis appears often to be a proxy for a determination on the merits made more on faith than evidence. In the final part of this Article, I consider the appropriate role that evidence should play in campaign finance cases. I argue that a more precise and transparent evidentiary inquiry into the connection between the goals of campaign finance laws and the means of achieving them will assist fair-minded judges in the inevitable constitutional balancing. I argue decidedly against the role that evidence currently plays in Supreme Court analysis of campaign finance cases as well as against Professor Pildes's alternative proposed "motive" test for judging campaign finance constitutional challenges.

Abstract:
In this essay prepared for a Nexus Law Journal symposium on blogging and the law, Professor Hasen examines the current controversy over whether campaign finance laws should extend to election-related activities conducted over the Internet. Until recently, Federal Election Commission (FEC) regulations exempted Internet-based election communications from the reach of much campaign finance law. The status quo changed when a federal district court recently held that the FEC must impose some regulations of these communications consistent with Congress's intent in passing the Bipartisan Campaign Reform Act of 2002. The FEC Internet rulemaking sparked a blogstorm of protest, and as of this writing the FEC had not yet promulgated a final rule. Whatever rule the FEC does promulgate is sure to be challenged by some aggrieved party in court, though it is possible that Congress will act first to exempt such communications, or at least attempt to do so, from the ambit of campaign finance laws.

Regardless of the final outcome of this rulemaking, the clash tells us some important things both about the nature of speech in the blogosphere and about the tenability of campaign finance laws in the era of cheap speech and shifting technology. First, the line between journalism and blogging is thin indeed. Second, many bloggers view their activities as more worthy of protection than traditional political communications, but they shouldn't. Third, the convergence of journalism and blogging, and of internet and television, will put pressure on rules limiting corporate and union participation in the election process. My main conclusion is that this debate will be fruitful only if one identifies the proper goals of campaign finance regulation. If we structured our campaign finance system to prevent corruption, promote equality, and provide valuable information to voters, we would do little to limit the political activities of bloggers, but we would impose some sensible disclosure rules. In implementing rules to meet these goals, we should be aware of the danger that the new sensible exemptions for blogging today can have unintended and far-reaching consequences tomorrow.

campaign finance, election law, internet regulation

Abstract:
One of the hallmarks of a mature democracy is professionalized, centralized, and nonpartisan election administration. It is hardly news that the United States does not fit this model, and that since the 2000 election meltdown culminating with the Supreme Court’s decision in Bush v. Gore, the country has faced biannual anxiety over whether the next meltdown is imminent. Some observers at first hoped the courts or Congress would spur election administration reform, but that has not happened. Now, some election law scholars have turned to institutional design, considering new institutions or mechanisms, such as amicus courts and electoral advisory commissions, to prod existing institutions into election reform. Heather Gerken’s significant new book, The Democracy Index: Why Our Election System is Failing and How To Fix It, represents the most sustained effort in this New Institutionalist vein. It makes the case for the creation of a ranking of states (“the Democracy Index”) along a number of election administration criteria, such as how well the system counts votes and how long it takes voters to cast a ballot. Gerken argues that the ranking system will create the right incentives for jurisdictions to move toward professionalized and non-partisan election administration.

Part I of this review sets forth Gerken’s proposal for a Democracy Index. Part II situates the book within the New Institutionalist approach to election administration reform. It argues that Gerken’s work is significant not only for its specific proposal but also because it advances the New Institutionalism. It catalogs the various ways in which the addition of information may spark both rational and emotional reactions by election administrators, legislators, judges, the public, and political parties.

Part III turns from the theory of causal mechanisms of the New Institutionalism to a look at the available evidence. Based upon what we know, it appears that the Democracy Index could well increase the professionalism of election administration in the United States, and thereby decrease the risk of electoral meltdown. But the Index likely will not be enough to overcome the twin pathologies of partisanship and localism that have thus far blocked comprehensive election administration reform. This Review concludes by noting that Old Institutionalism - hardball politics backed by one party or the use in states of an initiative bypass - rather than the soft politics of the New Institutionalism, may present the best hope to fully revamp our system of election administration.

election administration, federalism, Bush v. Gore

Abstract:
The conventional story about the Supreme Court's decision in Baker v. Carr to adjudicate disputes over legislative apportionment is that political market failure required judicial intervention. The market failed in the case of unequally populated districts because existing legislators could not be expected to vote themselves out of a job, nor would voters who benefit from the existing apportionment plan elect legislators inclined to do so. This market failure makes a strong case for extra-legislative intervention in apportionment, assuming we - or at least courts - may make the normative judgment that unequally populated districts are improper. Thus, a subtext of the conventional story is our trust in the judiciary. We need faith that judges' impartiality and general wisdom makes up for the lack of particular competence in dealing with political matters. Opponents of judicial intervention doubted judicial competence in this area, calling for nonjusticiability in this area because "standards...for judicial judgment are lacking." This concern over "judicial manageability" turned out to be seriously exaggerated in the legislative apportionment and districting cases, where the court's adoption in Reynolds v. Sims of a strict "one person, one vote" standard required little more than knowledge of "sixth grade arithmetic," but it has proven more real in other cases, most recently, in Bush v. Gore.

This Article argues that the Baker majority and dissenters apparently failed to appreciate the benefits of judicial unmanageability for dealing with election cases under the Equal Protection Clause of the 14th Amendment. Precisely because these cases require the Supreme Court to make (at least implicit) normative judgments about the meaning of democracy or the structure of representative government, the danger of manageable standards is that they ossify the new rules and enshrine the current Court majority's political theory. That enshrinement is precisely what happened in the one person, one vote cases.

We cannot be surprised that the Court adopted the manageable standard of equally apportioned districts in Reynolds; manageable standards lower administrative costs, decrease the chances of lower court deviation from Supreme Court preferences, and increase reliance interests of those involved in the electoral process. But we must recognize the cost of manageable standards as well.

In contrast to Reynolds, when the Court does not articulate a manageable standard, it leaves room for future Court majorities to deviate from or modify rulings in light of new thinking about the meaning of democracy or the structure of representative government, or based on experience with the existing standard. It also allows for greater experimentation and variation in the lower courts using the new standard. Following modification and experimentation, it then often will be appropriate for the Court to articulate a more manageable standard.

In Part I of this Article, I explore whether the Court adopted an appropriately precise standard in the "one person, one vote" cases. I argue that the Court adopted the most manageable of standards that in retrospect has been too restrictive of political realities. I further consider how politics and jurisprudence might have been different had the Court adopted Justice Stewart's alternative, unmanageable standard for judging malapportionment claims. Justice Stewart's standard would have provided greater flexibility in dealing with apportionment problems and provided greater information to the Justices as they refined the new constitutional standards.

In Part II of this Article, I explore three additional areas in which the Court has adjudicated election cases under the Equal Protection Clause: cases involving wealth qualifications (Harper), suffrage qualifications (Kramer), and vote counting (Bush v. Gore). I use these three cases to illustrate how the Court may increase the unmanageability of the equal protection standards as it faces a more controversial equal protection claim.

Finally, in Part III, I briefly show how unmanageable standards may counteract the possibility of court-imposed proportional representation, which lurks in the background of a number of election cases under the Equal Protection Clause. Unmanageable standards sometimes will be a better alternative than denying relief altogether. I make this point by contrasting two cases. In Mobile v. Bolden, the Court rejected a claim that an at-large districting plan violated equal protection. It did so at least in part because it believed that to hold otherwise would have imposed a system of proportional representation on the creation of legislative bodies. In Davis v. Bandemer, the partisan gerrymandering case, the Court recognized a claim of an unconstitutional partisan gerrymander under the Equal Protection Clause, but did so using an unmanageable standard. Contrary to the predictions of the Justices not signing the plurality opinion and of some commentators, the Court in Bandemer successfully avoided imposing a proportional representation test on partisan gerrymandering claims. Thus, the Mobile Court was incorrect that a decision under the Equal Protection Clause would have led inexorably to proportional representation.

Abstract:
In 2002, the United States Supreme Court held that a provision of Minnesota's rules regulating the conduct of judicial elections violated the free speech guarantees contained in the First Amendment to the United States Constitution. By a 5-4 vote, the Court in Republican Party of Minnesota v. White held that Minnesota could not prevent judicial candidates from "announcing" their views on disputed legal or political issues. White left open many questions, but some lower federal courts have relied upon it to strike down a host of other judicial campaign regulations, from those that prohibit judicial candidates from making campaign promises to those that bar such candidates from directly soliciting campaign contributions. State courts have read White more narrowly and upheld challenged judicial election rules, leading to a great deal of uncertainty over precisely which judicial campaign regulations pass constitutional muster. In addition, some state supreme courts, perhaps in anticipation of legislation, have changed the rules for conducting of judicial elections. The law is in a high state of uncertainty, which is likely to persist at least until the Supreme Court hears another case resolving these issues.

White emerged at a time - perhaps not coincidentally, - when judicial campaigns were becoming "nastier, noisier, and costlier," and White has the potential to inject judicial candidates more directly into the tumult of these newly-invigorated campaigns. This chapter, part of a forthcoming NYU Press book, Running for Judge (Matthew Streb. ed., forthcoming April 2007) considers the legal question whether, in light of White, the most important judicial campaign regulations can survive First Amendment challenge. The question is important and urgent in the thirty-nine states that select or retain at least some of their judges through elections.

This chapter first lays out the major regulations of judicial conduct in various states. It then summarizes White's holding and reasoning. The remainder of the chapter considers arguments that have been advanced since White for and against the constitutionality of the major judicial campaign regulations. The analysis concludes that most of the major regulations are of uncertain constitutionality under White. This constitutional analysis must be considered with caution, however. Two of the five Justices in the White majority (Chief Justice Rehnquist and Justice O'Connor) have left the Supreme Court, and it is unclear whether the new Roberts Court will follow White faithfully or go forward in a moderately or radically different direction. Only time will tell if remaining longstanding special regulations for judicial elections will survive legal challenge.

Abstract:
The Journal of Legislation and Notre Dame Law School invited three distinguished scholars to comment on my recent book, "The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore" (NYU Press 2003), and have kindly given me this chance to reply. After a brief summary of the main points of my book, I focus on what I consider to be the central critical claim of each commentator. Professor John Nagle gently suggests that election law itself may not be a coherent field of study, noting that much election law jurisprudence appears to turn on matters of appearance over that of substance. Professor Luis Fuentes-Rohwer agrees with much of my analysis, but argues that I do not go far enough - suggesting that the logical end-point of my argument is for the Supreme Court to extricate itself from the political thicket entirely. Professor Guy-Uriel E. Charles argues that my distinction between core and contested equality rights eliminates any purpose for judicial review and is too difficult to put into practice.

In this Reply, I defend my approach. Professor Nagle is right that the Court often strays from the right path when it decides election law cases on appearances alone, but he fails to recognize how conceiving of election law synthetically informs Court decisionmaking on issues such as the justiciability of partisan gerrymandering claims. Professor Fuentes-Rohwer's general suggestion of Court exit from the political thicket has much to commend it in the abstract, but he fails to evaluate my proposal as a second best approach, particularly compared to the main alternative floating around election law circles today, the structuralist approach that focuses on appropriate political competition. Finally, Professor Charles puts his finger on the most difficult aspect of my book, and I welcome his decision to take my proposed distinction between core and contested equality claims seriously.

election law, gerrymandering, campaign finance

Abstract:
This brief essay responds to Professor Akhil Amar's Dunwoody Lecture at the University of Florida, "Bush, Gore, Florida, and the Constitution." In some ways, Professor Amar follows the well-trodden path of liberal critics of the Supreme Court’s opinion in Bush v. Gore in arguing that: (1) the Florida Supreme Court did not violate Article II of the Constitution in ordering a partial recount of votes; (2) the U.S. Supreme Court majority failed to respect Congress’s role in resolving disputes over Electoral College votes; (3) the Court’s equal protection holding which ended the Florida recount promoted inequality, rather than equality; and (4) Chief Justice Rehnquist and Justices Scalia and Thomas voted strategically in support of the equal protection holding of the per curiam opinion because of the bad press that would come from having “a majority of Justices in fact reject[ing] each of the only two theories put forth by the Bush campaign to end the recount.”

But Professor Amar’s lecture makes a much broader point as well, one that has resonance for future election disputes well beyond debate over the legacy of Bush v. Gore. In drawing from writing by those on all sides of the debate, Professor Amar teases out a consensus rejecting lawlessness in the resolution of election disputes. That is, Professor Amar shows that everyone agrees that elections should be decided as nearly as possible under the “rules of the game” put in place on Election Day, and that it is illegitimate to change the rules after the election ends. Where people part company in the Florida 2000 dispute is over what the rules of the game actually were on Election Day in 2000, and whether the Florida Supreme Court or the U.S. Supreme Court was more guilty in changing those rules after the fact.

This consensus against lawlessness in resolving disputed elections is a profound point, and it is one that can be used to help avoid future Bush v. Gore-like debacles. In this brief response to Professor Amar’s lecture, I aim to do three things. First, I show why, even though there is consensus about the lawlessness principle in the abstract, consensus can never be reached about who was right in Bush v. Gore despite Professor Amar’s impressive arguments. Second, I show how the lawlessness debate is replaying itself in the contest over the winner of the 2008 U.S. Senate election in Minnesota. Finally, I argue that an understanding of the lawlessness principle can be used to help avoid similar debacles in the future. In particular, disputes over election outcomes may be curtailed through statutory interpretation instructions directed to state courts passed ex ante by state legislatures and increased centralization of election processes.

Bush v. Gore, statutory interpretation, Coleman v. Franken, election administration

Abstract:
This Essay, written for the inaugural issue of the Albany Government Law Review, explores the campaign finance jurisprudence of Justice Souter. Justice Souter wrote many of the Supreme Court's recent opinions upholding a variety of campaign finance regulations. I suspected that his attempt to harmonize his deferential approach with prior precedent was done to please Justice O'Connor, a decisive fifth vote in many of these cases. Justice O'Connor's retirement and replacement with Justice Alito has brought a shift in the Supreme Court's campaign finance jurisprudence toward deregulation, relegating Justices Ginsburg, Souter, Stevens and Breyer to the minority. This shift to the minority has freed Justice Souter to some degree to express his own views of the appropriate balance between the First Amendment and other interests in the campaign finance cases (though he still may be tempering his own views somewhat to remain consistent with his earlier opinions). His recent dissenting opinion in FEC v. Wisconsin Right to Life is the clearest exposition yet of Justice Souter's jurisprudence in the area, unencumbered by the need to capture a fifth vote.

As this Essay argues, Justice Souter's jurisprudence as expressed in WRTL demonstrates an emerging egalitarian view of campaign finance law. It is a view that is broadly consistent with Justice Breyer's "participatory self-government" rationale for campaign finance regulation but more deferential to legislative branches about the means of achieving political equality. Though there were elements of egalitarianism in Justice Souter's earlier opinions, WRTL goes further. But the Justice's egalitarian ideas are not yet fully formed, and there is room for questioning some of his implicit arguments and assumptions.

Part I of this Essay describes Justice Souter's campaign finance views expressed in cases while Justice O'Connor remained on the Court. Part II turns to Justice Souter's freer approach in WRTL. It first gives relevant background about the WRTL case. It then describes Justice Souter's views in dissent, which sets forth a view of the government's compelling interest in promoting "democratic integrity." It then argues that the "democratic integrity" interest, though couched in some anticorruption language, actually expresses a nascent egalitarian approach to campaign finance regulation. The Part concludes by noting that, unlike Justice Breyer, Justice Souter has been insufficiently attentive to the problem of incumbency protection in campaign finance regulation. In addition, Justice Souter has yet to fully explore three issues in his emergent egalitarian approach related to (1) his critique of total campaign spending; (2) his views on the connection between campaign spending and public cynicism about the political process; and, most importantly, (3) his treatment of labor unions.

Abstract:
Commentators almost universally condemn political vote buying, though the reasons for condemnation fall into three distinct categories: equality, efficiency, and inalienability. Any one of these three reasons may be sufficient to explain and justify a ban on vote buying. This overdetermination matters, not for the ban on core vote buying, but for myriad other situations that are similar to the core case but deviate from it in some way.

The Article applies the three criteria of equality, efficiency, and inalienability to evaluate a number of non-core vote buying practices: (a) legislative logrolling; (b) corporate vote buying; (c) payments to increase turnout; (d) candidate campaign promises and campaign contributions; and (e) voting in special district elections. Part II concludes that some of these practices violate only one or two of the three anti-vote buying criteria, and that a decision on each practice's desirability turns on a normative evaluation of these criteria.

Abstract:
In the early part of this decade it appeared that California voters stood to use the devices of direct democracy - the initiative, referendum, and the recall - to take a more major role in crafting the state's public policy. After all, in 2003 California for the first time recalled a sitting governor, Gray Davis, and replaced him with actor-bodybuilder Arnold Schwarzenegger. By the end of the decade, however, despite the promise of "hybrid democracy," it appears that voters remain the junior partners in governance in the Golden State. Schwarzenegger's boldest attempt to bypass the legislature and go directly to voters came in a special election he called in 2005. Though Schwarzenegger raised and spent $56 million supporting his package of measures (out of a total of an astounding $300 million spent on ballot measure activity in that election, all of the measures that Schwarzenegger backed went down to defeat, some by large margins.

The 2005 experience was not isolated. One lesson of this decade is that the devices of direct democracy remain too blunt and expensive as tools for anything but interstitial governance. From 2002 through 2008 voters were asked to approve 63 ballot measures - 43 voter initiatives and 20 ballot measures proposed by the legislature. California voters approved 18 of the 20 legislative ballot measures (the large majority of them bond measures), a 90% approval rate. But they approved only 14 of 43 initiatives, a rate of 32.5%, lower than the rate in past decades. Proponents and opponents spent over $1.3 billion on ballot measure-related activity in California in the 2000-2006 period. Despite this flurry of activity, California's governance appeared in shambles for much of the decade, with the biggest problem being the inability of the California legislature to approve a state budget under the state constitution's tough rule requiring two-thirds approval of budgets, leading the state in 2008 to the verge of financial collapse. Moreover, the initiative process proved especially divisive in 2008 when California voters narrowly approved Proposition 8, a measure amending the California Constitution to bar gay marriage.

This review essay considers the state of hybrid democracy in California through an examination of three worthy books: Daniel Weintraub, Party of One: Arnold Schwarzenegger and the Rise of the Independent Voter; Center for Governmental Studies, Democracy by Initiative: Shaping California's Fourth Branch of Government (Second Edition), and Mark Baldassare and Cheryl Katz, The Coming of Age of Direct Democracy: California's Recall and Beyond. The essay concludes that despite the hoopla about Governor Schwarzenegger as a "party of one" and a new age of "hybrid democracy" in California, the pattern in the 2000s appears mostly the same as that of past decades: California voters have occasionally passed important measures through the initiative process, but for the most part public policy in the state continues to be crafted by the state legislature and the governor. The best hope for increased "people power" through the initiative process is for initiative proponents to focus on good government measures that assure a better legislative process, such as open primaries, redistricting reform, and budget reform.

legislation, initiatives, direct democracy, recall, hybrid democracy

Abstract:
Since the mid-1970s, the United States system for the financing of presidential election campaigns has been a mixture of private fundraising by candidates, parties, and outside groups and optional public financing for candidates (and for political party conventions). The 2008 presidential election-with its record-breaking $1.8 billion campaign (including an astounding $745.7 million raised by then-Democratic candidate Barack Obama) (FEC 2009) - demonstrated that the current system is in the midst of a major transformation. This chapter explains how the system is changing, offers possible reasons for the transformation, and evaluates the transformation normatively.

Part I shows how the system is changing in four ways. (1) The voluntary presidential public financing system is no longer viable; candidates who opt in do so out of weakness, not strength. (2) A major share of private campaign contributions to presidential candidates in 2008 have come through campaign finance “bundlers” and from micro-donors giving very small amounts via the Internet. (3) Thanks to a U.S. federal law, Bipartisan Campaign Reform Act of 2002 (BCRA), political parties can no longer accept very large campaign contributions (“soft money”) from wealthy individuals, corporations, and labor unions to pay for political advertising. (4) Wealthy individuals, corporations, and labor unions have shifted some, though not necessarily all, of the money that used to go to political parties and to “issue advocacy” into outside groups (including so-called “527 organizations”).

Part II explains that these four changes have likely arisen from a number of factors including: (1) the failure of the U.S. Congress to update the presidential public financing system, first enacted in 1974; (2) enactment of BCRA and the U.S. Supreme Court’s shifting interpretation of the constitutionality of campaign finance law; (3) the rise of cheap political speech via the Internet; and (4) continued political polarization.

Part III explores normative implications. The potential for quid pro quo corruption of candidates appears to remain low, thanks to a series of laws imposing contribution limits. Sale of access to candidates, however, remains a feature of U.S. presidential elections even post-BCRA. From the standpoint of political equality, the transformation offers a mixed bag with somewhat offsetting effects. Thus, the collapse of the public financing system may have anti-egalitarian effects, but those effects are somewhat militated by the rise of micro-donors. The end of soft money and the rise of outside non-party political organizations in theory could lead to weakened political parties, but continued polarization of the electorate have kept parties thriving even under BCRA and the shifting constitutional ground rules of the U.S. Supreme Court.

Abstract:
This brief essay responds to an article by Professor James A. Gardner, The Dignity of Voters - A Dissent, appearing in a symposium in the University of Miami Law Review. Gardner offers a sustained critique of a line of Supreme Court election law cases recognizing “dignitary rights” of voters, including Shaw v. Reno, recognizing the “unconstitutional racial gerrymander,” Bush v. Gore, recognizing the right to have one’s vote counted in a recount according to uniform voting procedures; and Purcell v. Gonzales, a voter identification case in which the Court recognized a right of voters not to have their votes “canceled out” by voter fraud (or their “feelings” hurt by such fraud).

I make two points. First, Gardner mistakenly explains the dignitary rights cases as the Supreme Court embracing the “individual” rights side in the “rights-structure” debate among election law scholars. Instead, these developments show the Court embracing a misguided structural approach to election law cases (albeit clothed in the language of rights). Shaw reined in what the Court majority viewed as an out-of-control Justice Department overly interfering with state prerogatives in redistricting; Bush reined in what the Court majority viewed as an out-of-control Florida Supreme Court overly interfering with administrative recount procedures in the highly-charged context of a presidential election recount. Purcell reined in civil rights plaintiffs interfering with state administrative prerogatives in setting forth the rules for conducting elections. In each of these cases, voter “rights” are merely a stand-in for structural concerns of the Court.

Second, using the individual rights approach, these cases were incorrectly decided. Under the individual rights approach, the Court should protect only “core” equality rights that affect the real allocation of political power among political equals in a democracy. In Shaw, the Court incorrectly protected voter rights in the districting process that had no potential to affect political power relationships. In Bush and Purcell, the Court failed to recognize rights on both sides of the case, and that the rights of voters on what turned out to be the losing side easily trumped rights on the winning side of the case. Thus, Gardner’s conclusion that these cases were wrongly decided is absolutely correct, even using an individual rights framework to reach this result. The Court should continue to focus on rights in its election law jurisprudence, but not on inchoate “dignitary” rights that fail to affect the allocation of political power.

Abstract:
This is a brief introduction to the Loyola of Los Angeles Law Review developments issue, which focuses in Volume 42 on election law topics. The first half of this introduction provides an update on the state of election law. It compares the state of election law as a discipline now to its state 10 years ago, when I wrote the introduction to the Loyola of Los Angeles Law Review symposium on "Election Law as Its Own Field of Study." The second half of this introduction describes the five new important student works contained in the developments issue. Sabina Jacobs, in "The Voting Rights Act: What Is the Basis for the Section 5 Baseline?," examines a provocative statutory interpretation of the Voting Rights Act suggested by Chief Justice Roberts during oral argument in Riley v. Kennedy. Julien Kern, in "As-Applied Constitutional Challenges, Class Actions, and Other Strategies: Potential Solutions to Challenging Voter Identification Laws After Crawford v. Marion County Election Board," examines the prospects for litigation in future voter identification cases. Molly McLucas, in "The Need for Effective Recusal Standards for an Elected Judiciary," argues for specific recusal standards in light of the Supreme Court's recent opinion in Caperton v. Massey. Joshua Rosenberg, in "Defining Population for One Person, One Vote," analyzes a fascinating question recently brought to the fore by Judge Guido Calabresi of the United States Court of Appeals for the Second Circuit in his opinion in Kalson v. Paterson. Finally, in "Davis v. Federal Election Commission: Muddying the Clean Money Landscape," Emily C. Schuman examines a potential (intended or unintended) consequence for public financing plans of the Supreme Court’s recent decision in Davis v. Federal Election Commission.

Abstract:
When journalists write their stories about state ballot propositions in the 2006 election, they likely will focus on South Dakota's abortion rights referendum, Michigan's affirmative action measure, or the variety of eminent domain measures reacting to the Supreme Court's Kelo decision. But there's also a story about measures that courts have kept off the ballot in a misguided effort to protect voters from making hard or bad choices. In this short essay, I argue that states should repeal their "single subject" rules because judicial enforcement leads to arbitrary, perhaps result-oriented decisions that don't benefit voters.

Abstract:
After the 2008 presidential election season concludes, no doubt there will be calls to change the presidential nomination system, especially on the Democratic Party side. Already before the current season began, Congress explored legislation to prevent the frontloading of the primary process through the creation of a series of rotating regional primaries. The close contest for the Democratic Party nomination this winter and spring revealed additional issues beyond the timing question. Critics have argued that the caucus system used in some states is unfair and poorly administered, that the unequal weighting of votes for purposes of delegate selection violates democratic principles, and that the fate of the Democratic Party presidential nomination should not turn on the votes of unelected superdelegates. It is certainly possible that the parties themselves will change their nomination rules in response to these criticisms, as the parties have done in the past. But in the event the parties cannot agree on changes, Congress may consider legislation imposing changes to make the nomination rules comply more with the typical one person, one vote norms applicable to general elections. At the extreme, Congress might require presidential nominations to occur through state-by-state direct primaries conducted under one person, one vote principles. Here, I explore the question whether Congress has the power to impose such primaries on the parties and the states if the parties, states, or both object. I do not consider the wisdom of such legislation.

As I explain, the main argument that parties can advance against Congressional (or for that matter, state) imposition of a direct presidential primary is that it violates the First Amendment associational rights of political parties to determine their method for choosing their standard bearers. This argument would appear to have much force given recent Supreme Court cases recognizing the parties' rights to overrule the states on the open or closed nature of political primaries. On the other hand, the Court has also accepted as "too plain for argument" a governmental power to require parties to use direct primaries to choose their nominees to assure fairness of the process. So resolution of the question is uncertain.

The second argument that the parties or the states may raise against Congress is that Congress lacks the power under the Constitution to set the rules for presidential elections. Such an argument reads Congressional power under Article II of the Constitution narrowly, limited to setting the time for choosing presidential electors. Though the textual argument under Article II has some force, both Court precedent and policy suggest that the courts could well accept Congressional power to impose at least some regulations on the primary process, such as regulations setting the timing of primaries or caucuses. It is not clear whether congressional power would extend as far as to the imposition of a direct presidential primary against the parties' and states' wishes.

Part I of this Essay briefly reviews complaints from the 2008 election season about the presidential nominating process. Part II considers the party autonomy argument against congressional legislation imposing a direct presidential primary. Part III considers the Congressional power argument. This Essay concludes by noting that even if Congress may lack the power, the threat of congressional action could spur the parties to reform themselves.

political parties, election law, First Amendment, Article II

Abstract:
This article examines the plausibility and implications of a norm-based explanation for voting. Part I reviews rational choice models for voting, contrasts the rational choice models with the social norms hypothesis and examines the empirical evidence regarding the existence of a norm of voting. As Part I demonstrates, rational choice explanations have offered only a tautological explanation of why people vote: People vote when the psychic benefits of voting exceed its costs. Unlike the rational choice explanation, a norm-based explanation of voting can explain plausibly why some people vote, as well as explain aggregate changes in voter turnout over time. Although the norms hypothesis is plausible, evidence supporting the hypothesis is sketchy and may be consistent with alternative explanations for voting. The analysis in Part I illustrates a general proposition that norm-based explanations are about as easy to conjure up as they are difficult to prove.

Assuming that a norm of voting has served to overcome collective action problems for only certain groups in the United States, and assuming that the norm has eroded over time even among these groups because of a decrease in social connectedness, arguably the state should take on the role of social sanctioner of last resort through a compulsory voting law. Part II of the is Article examines the substitutability of state- and societal-based mechanisms for social control in the voting context. In particular, this Part considers whether compulsory voting laws could serve as a good substitute for a norm of voting. Part II demonstrates that state and societal-based methods of control are not always substitutable. Enactment of a compulsory voting law in the United States, even if desirable as a method of overcoming collective action problems, and even if proven effective as a means of increasing turnout in other states, is unlikely to occur because of a widely held libertarian belief against government interference in the decision to vote.

Abstract:
Despite signs from the 2004 presidential election contest pointing to a larger role for "big money" in the 2008 season, the indicia so far suggest that there is much for egalitarians to cheer. Egalitarians believe that unequal distribution of wealth should play less of a role in determining presidential election outcomes and/or the policies of the president once elected. At this point in the 2008 election season, it appears that big money is beginning to matter less, rather than more, thanks in large part to the enhanced role of the Internet in campaigning and fundraising, and especially thanks to the viability of campaigns funded substantially by small donors. Such a shift is especially important given that the United States Supreme Court has grown increasingly hostile to campaign finance regulation. The promise of small donors, rather than regulation, stands the best chance of countering the role of big money in future presidential elections.

Abstract:
Before the United States Supreme Court decided McConnell v. Federal Election Commission, the law related to campaign finance disclosure was a mess. As this commentary (part of a special symposium issue on the case to appear in the Election Law Journal) explains, McConnell resolved a key disclosure question, upholding the constitutionality of new disclosure rules in the Bipartisan Campaign Reform Act of 2002 (BCRA) related to contributions and expenditures funding "sham issue advocacy" in candidate elections.

McConnell unfortunately left open many other important questions concerning conflicts between two earlier key Supreme Court cases discussing disclosure, Buckley v. Valeo and McIntyre v. Ohio Elections Commission. Even after McConnell, the constitutionality of disclosure rules in three important areas remains unclear: (1) To what extent may the government compel disclosure of a speaker's identity in face-to-face election-related communications or compel disclosure of the funder of communications on the face of election-related advertisements? (2) To what extent may the government compel disclosure of expenditures by those using modest resources? (3) To what extent may the government compel disclosure of contributions and expenditures in ballot measure campaigns? Answers to these questions will await cases post-McConnell.

Abstract:
In the wake of the 2000 Florida election controversy, many Americans have questioned whether and how the Supreme Court should decide election law disputes. In the first comprehensive study of the issue since the Supreme Court decided Bush v. Gore, I rethink the Supreme Court's role in regulating elections.

Drawing on the case files of Supreme Court Justices in the Warren, Burger, and Rehnquist courts, I root the Supreme Court's intervention in political process cases to the 1962 case Baker v. Carr, in which the Court first agreed to consider claims that a state legislature had violated the Constitution by failing to draw legislative districts with equal populations. The case opened the courts to a variety of election law disputes, to the point that the courts now control and direct major aspects of the American electoral process.

The Supreme Court does have a crucial role to play in protecting a socially constructed "core" of political equality principles, but it should leave contested questions of political equality to the political process itself. Under this standard, many of the Court's most important election law cases from Baker to Bush have been wrongly decided.

Abstract:
This chapter, in a volume edited by McCaffery, Crigler, and Just, explores the legal and normative implications of social scientific voting reform research. It begins by discussing the state of election law leading up to the United States Supreme Court's December 12, 2000 opinion in Bush v. Gore, which ended the recount in Florida, and then comments on what that case did for the law. Even though Bush v. Gore ultimately may have no precedential value, it is also possible that it has created a window of opportunity for a host of legal challenges aimed at voting reforms. Social science research may well be decisive in resolving such challenges.

The next section considers the possible future and normative implications of the social science research that Bush v. Gore may have let into the election law mainstream. Social scientists studying voting have focused much of their attention on boosting turnout, but the focus raises the normative question whether high turnout is desirable. If a high turnout itself is desirable, some means for increasing turnout raise their own normative questions. Carrots, such as payments for turnout, or sticks, such as compulsory voting laws, may be objectionable, even if the goal of increasing turnout is considered a good. This section also explores some unintended consequences of proposed voting reforms. For example, social scientists are now debating and testing various means for voting in nontraditional ways, such as in cyberspace. Although such means may increase turnout, they also may facilitate voter bribery and fraud.

The final section concludes with a call for the Supreme Court to move slowly in formulating rules in response to election reform litigation. It may seem counter-intuitive, but the Court may do best or at least do the least damage by adopting initially murky equal protection standards. Such "judicially unmanageable" standards will allow lower courts to experiment with various controls over the electoral process and the Supreme Court to learn from the varied experimentation before committing to more rigid rules governing the electoral process.

Abstract:
This article is part of a symposium issue in the University of Richmond Law Review on the book, "Voting with Dollars: A New Paradigm for Campaign Finance" by Bruce Ackerman and Ian Ayres. In the book, Ackerman and Ayres argue that their proposal for campaign finance vouchers and mandatory donor anonymity is consistent with the important Supreme Court campaign finance case of Buckley v. Valeo, 424 U.S. 1 (1976). Unfortunately, the authors underestimate how the Buckley framework would limit the benefits of their proposal. Buckley's rules on issue advocacy and individual expenditure limits would render the voucher program and the mandatory donor anonymity plan far less effective than the authors suggest. Although the voucher plan would still be an improvement on the current system, many of the modern problems of campaign finance would remain. Comprehensive reform must await a fundamental change in our campaign finance regime.

Part I sets forth the basics of campaign finance law as established in Buckley, Ackerman and Ayres' views on the correctness of Buckley, and an analysis of whether the authors' proposal is consistent with Buckley. Part II explains how Buckley interferes with the efficient working of the Ackerman/Ayres proposal. It illustrates the problems Buckley creates by drawing upon the book's hypothetical discussion of how the 2000 presidential election would have been conducted had the authors' proposal been put in place. It concludes with some thoughts on why massive reform must await the end of the Buckley regime.

Abstract:
Congress has not enacted major campaign finance reform since 1974, when it passed amendments to the Federal Election Campaign Act (FECA). After years of failed attempts to adopt a new regulatory scheme for federal campaign financing - or at least to significantly tweak the existing scheme - Congress came closest to this goal in the first half of 2001. The centerpiece of proposed legislation with the greatest chance of passage, known informally as the "McCain-Feingold bill" in the Senate and the "Shays-Meehan bill" in the House, is a ban on "soft money" contributions to political parties. Soft money is money raised to influence the outcome of federal elections but not currently subject to FECA limitations.

This Article explores whether a soft money ban would be constitutional in light of the Supreme Court's most recent campaign finance case, Federal Election Commission v. Colorado Republican Federal Campaign Committee (Colorado Republican II). In Colorado Republican II, the Supreme Court upheld a provision of the 1974 FECA amendments limiting the amount of so-called "hard money" political parties could spend in coordination with candidates. Hard money is money raised to influence the outcome of federal elections that is subject to FECA limitations.

Colorado Republican II makes it very likely that the Supreme Court, as currently constituted, would uphold a soft money ban. However, if even one member of the 5-4 majority in Colorado Republican II leaves the Court, the ban's constitutionality (and for that matter, the constitutionality of much existing campaign finance regulation) would be much more uncertain.

In Part I, I review the legislative, judicial and administrative developments that led to the emergence of soft money and briefly explore the role that soft money plays in the financing of federal elections. In Part II, I explain how the current Supreme Court likely would analyze whether a ban on soft money violates the First Amendment's rights of free speech and association. In this part, I show that the Court has allowed campaign contribution limits to prevent corruption and the appearance of corruption. I then explain how Colorado Republican II strengthens the argument that a soft money ban is constitutional because the majority in the case recognized that parties sometimes serve as conduits for corruption between wealthy donors and candidates or elected officials.

Finally, I respond to two arguments that have been made against the constitutionality of a soft money ban. The first argument, made initially by Professor (and now FEC commissioner) Bradley Smith and later endorsed by the Washington state supreme court and a federal district court in Alaska, states that a soft money ban is unconstitutional because the money raised with soft money pays for political activities protected by the First Amendment. The second argument, by Senator Mitch McConnell, states that a soft money ban is unconstitutional because it singles out national political parties for discriminatory treatment. Neither of these arguments is well taken, especially following Colorado Republican II.

Abstract:
Those expecting Judge Richard A. Posner's new book, Breaking the Deadlock, The 2000 Election, the Constitution and the Courts (Princeton University Press 2001), to be a convincing defense of the Supreme Court's decision to end the recount of Florida votes for president in the 2000 election will be disappointed. The book is clearly written in Posner's usual conversational style and full of strong arguments on peripheral points related to the 2000 election. But liberals will come away unconvinced by Posner's admittedly result-oriented argument that the Court's decision was necessary to avert a crisis. Conservatives, while likely pleased that Posner has made a more straightforward case for the outcome in Bush v. Gore than the Court majority did itself, will find little comfort in Posner's result-oriented approach, which he tries to dress up as "pragmatism." Moreover, at many points, Posner's analysis reads more like a "critical legal studies" analysis of the case than the sober analysis of a conservative jurist. Nor will conservatives be particularly pleased by his approach to statutory interpretation and federalism issues. In the end, Posner's position on Bush v. Gore is "conservative" only in the sense that it favors the orderly transition of power over allowing a political decision to be made by accountable politicians. The review essay proceeds in two parts. Part I focuses on the most important part of Posner's book: his defense of the Supreme Court's decision in Bush v. Gore. Posner's analysis shows a cavalier attitude about the line between law and politics and little appreciation for when court intervention in politics is appropriate. Part II explores Posner's analysis of the Florida Supreme Court's decisions, contrasting Posner's solicitousness toward the U.S. Supreme Court's decision (if not its reasoning) with his disdain for the Florida high court's decisions. For Posner, law exists as something real when he can use it as a club to beat down the Florida court, but it is a convenient facade for the U.S. Supreme Court. Indeed, someone of different political stripes who applied Posner's result-oriented jurisprudence could find an equally strong justification for the Florida court decisions (if not their reasoning). The review concludes that if Posner's analysis remains the leading "conservative" defense of Bush v. Gore, liberals will have the better of the argument for some time to come. Nonetheless, Posner's approach reveals the dangers of result-oriented election law jurisprudence, advocated by both liberals and, now, conservatives.

Abstract:
This Article concerns a very narrow question in the broad debate over campaign finance regulation: are laws regulating media advertising (1) appearing within a short period before an election, (2) featuring a candidate's name or likeness, and (3) reaching a certain dollar spending threshold constitutionally overbroad? Although the question is narrow, the stakes are very large: such a "bright-line test" to regulate campaign advertisements appears to be the only way to close a very large "issue advocacy" loophole that has developed in our campaign finance laws. Congress and state legislatures are currently considering legislation using a bright-line test, and no doubt such legislation will be subject to constitutional challenge.

The Article explains that whether bright-line tests are constitutionally overbroad depends in part on the frequency with which such tests capture speech that is not really intended to influence the outcome of an election. Using empirical evidence from a dataset of 1998 and 2000 political advertisements, this Article examines the extent of overbreadth created by bright line tests. I conclude from the empirical analysis that there is a strong case to be made that bright line tests are constitutional, but such a conclusion rests not only on empirical evidence but also on a balancing of the costs and benefits of particular campaign finance regulations. The article sheds light not only on the constitutionality of campaign finance regulation, but also on the meaning of the constitutional doctrine of "substantial overbreadth".

Part I of this Article provides background explaining the problem that the proposed laws seek to address. Part II sets out the standards for judging the overbreadth of laws involving First Amendment rights of speech and association. Part III applies those standards to the empirical evidence and concludes that a strong case may be made for the constitutionality of bright-line tests.

Abstract:
In the seemingly endless debate between supporters and detractors of campaign finance limits, one thing both sides seemed to have agreed upon is the need for effective disclosure of campaign contributions and expenditures. However, consensus on the need for disclosure appears to be crumbling. This article considers the constitutionality of disclosure of contributions and expenditures used to fund sham "issue advocacy," that is electioneering advertisements that avoid words of "express advocacy" like "Vote for Smith." Sham issue advocacy has exploded in recent years, and is generally not subject to disclosure under federal or state law. This article explains why legislation that directly targets sham issue advocacy faces constitutional challenges and considers how those constitutional problems perhaps may be solved. Disclosure laws have the best chance of passing constitutional muster if they contain clear standards for disclosure that are not overly burdensome. Even such laws, however, run a risk of unconstitutionality on overbreadth grounds, because they will regulate some speech that is not unambiguously related to the election. I argue however, that such overbreadth can be limited to a very small number of cases, and, as minimized, such disclosure laws should be upheld as constitutional. In the end, anything but a rule allowing disclosure of sham issue advocacy will seriously hamper meaningful campaign finance regulation. Thus, it is worth every effort to craft constitutional disclosure laws.

campaign finance, issue advocacy, contributions, expenditure limits, disclosure, constitutional law

Abstract:
The United States Supreme Court decided Buckley v. Valeo in 1976. Among other things, the case upheld limits on campaign contributions but struck down limits on campaign expenditures. The per curiam opinion was drafted hastily to be in time for the 1976 elections and featured additional separate opinions from five of the eight Justices who decided the case. Members of the Supreme Court have since criticized various aspects of the opinion, including its decision to judge campaign contribution limits under a more deferntial standard than campaign expenditure limits. Yet despite such criticism and many challenges, the decision has appeared to be an immovable object.

Perhaps change is finally coming. This past term, the Supreme Court decided Nixon v. Shrink Missouri Government PAC. Shrink Missouri upheld against First Amendment challenge a Missouri law limiting individual campaign contributions to statewide candidates to $1,075. The outcome of the case is unremarkable following Buckley's decision to uphold the federal contribution limit of $1,000, but the reasoning in Shrink Missouri is quite significant. In four separate ways, the Court in Shrink Missouri lowered the constitutional bar for laws limiting campaign contributions. The Court (1) ratcheted down the level of scrutiny applicable to contribution limit challenges; (2) expanded the definition of "corruption" and the "appearance of corruption" necessary to sustain contribution limits; (3) lowered the evidentiary burden for a government defending contribution limits; and (4) created a very difficult test for those challenging a contribution limit as unconstitutionally low. In combination, the opinion shows dramatic new deference toward contribution limits. A key quetion remaining open after Shrink Missouri is the extent to which this deference signals a broader willingness of the Court to allow regulation of campaign finance. The case may be read that way, but it also may be read as upholding Buckley's key disticnction between contributions and expenditures.

We probably will not learn whether the first or second interpetation is correct until Supreme Court personnel changes. Nonetheless, even if the Court for the time being continues with Buckley's distinction between contributions and expenditures, the growth of "issue advocacy" and "soft money" make the distinction increasingly untenable. The tension created by these new campaign finance forms suggests that Buckley will be overruled. But it might be overruled toward deregulation rather than greater regulation. The answer depends upon whom the next President appoints to the Supreme Court.

Abstract:
The editors of the University of Pennsylvania Law Review asked the author (as part of its Point/Counterpoint series) to comment, in light of the United States Supreme Court's recent decision in California Democratic Party v. Jones, 120 S.Ct. 2402 (2000), on the question: "Should courts protect political parties in the two-party system?" In Jones, the Supreme Court struck down as unconstitutional Proposition 198, a California voter initiative establishing a "blanket primary" that allowed voters, regardless of party affiliation, to vote for any party's candidate in a primary election.

The article argues that courts generally should not protect the two major political parties, the Democrats and Republicans, except from interference in each party's internal governance and from one party's attempt to gain partisan advantage over the other. On the other hand, courts should protect minor parties. In the specific context of Jones, the article contends that major parties should not have been allowed to block a voter initiative establishing a blanket primary but that minor parties probably should be constitutionally exempt from participating in it. In the course of the argument, the article explains why the blanket primary does not infringe upon the First Amendment associational rights of major political parties.

Abstract:
Conventional wisdom holds that the initiative process weakens the role of parties in democratic politics. However, this wisdom depends on the assumption that the parties do not use the initiative process to further their own agendas. Although that assumption may have been accurate historically, this Article presents empirical evidence that the parties, at least in California, have begun to exploit the initiative process to both encourage voter turnout and refine party stances on issues.
Part and parcel of the conventional wisdom that initiatives weaken parties is the idea that the courts should view initiatives that regulate the parties with suspicion. This Article argues, to the contrary, that because parties are able to exploit the initiative process, there should be no special judicial scrutiny of initiatives regulating parties.

Abstract:
Current federal law prohibits corporations from spending corporate funds directly to promote or oppose a candidate for federal office. Instead, a corporation can set up an indirect funding mechanism subject to a number of restrictions on the source, use, and disclosure of funds. The prohibition on direct corporate spending, however, does not always apply to media corporations. If the New York Times Corporation, that prints the New York Times, or Time-Warner, through Time or CNN, endorses or opposes a candidate for federal office, federal law does not consider this a corporate campaign-related expenditure. A number of states have a similar "media exception" to their campaign finance laws. Recent campaign finance reform proposals aimed at promoting political equality have similar media exceptions.

Skeptics and critics of campaign finance reform point to the media exception as a potent argument against equality-based reform and even against current campaign finance laws. They argue that: (1) equality cannot be achieved when the media are given an even more preeminent place than they already have in shaping public attitudes toward federal candidates, especially, as some argue, given the media's supposed "liberal bias" and (2) the media exception cannot be eliminated without violating the First Amendment. This Article argues (contrary to my earlier and more cursory examination of the issue) that a media exception to campaign finance laws is unjustifiable, though current Supreme Court doctrine permits, and may even require, such an exception.

Part I briefly sets forth current federal campaign finance law and explains how it would apply to news media in the absence of a media exception. It also discusses media exceptions found in some proposed reform plans and campaign finance legislation. Part II uses a public choice/egalitarian pluralist model to argue against a media exception to otherwise applicable campaign finance laws. It posits and examines the evidence indicating that media owners are profit or influence maximizers who use their news outlets' endorsement decisions to rationally further their own interests, including as a means to secure access to public officials. Part II argues that equality is somewhat undermined by the current media exception, and equality would be greatly undermined by a media exception to a more comprehensive equality-based campaign finance reform plan like my voucher plan. Eliminating the media exception likely would not have a significant effect on the outcome of federal elections. It may, however, have a significant effect on some federal policy outcomes, and an end to the exception would be an important symbolic measure to eliminate perceived inequality of political capital under a more comprehensive equality-based campaign finance reform plan.

Part III examines two major objections to repeal of the media exception. The first is a constitutional argument that a campaign finance law without a media exception violates the First Amendment. I examine this issue both under current campaign finance jurisprudence and in a post-Buckley era where the Supreme Court has upheld the constitutionality of broader, equality-based campaign finance reform. The Supreme Court in Austin v. Michigan Chamber of Commerce upheld the permissibility of a media exception, and if the Court followed current doctrine it likely would hold that the exception is not only permissible, but required by the First Amendment. But if the Supreme Court rethinks its approach to campaign finance generally to allow promotion of political equality, an equality-promoting law lacking a media exception stands a fair chance of being upheld under the First Amendment. Part III also examines a second objection, that eliminating the media exception would do little to promote political equality because the law would not regulate the real source of media power: subtle bias in news coverage of political candidates. Though there is some merit to this objection, the evidence of systematic bias in news reporting in favor of or against Democratic or Republican candidates for federal office is weak, probably due to increased norms of professional objectivity internalized by journalists.

Finally, Part IV briefly argues against repeal of the current media exception for corporate media. Though narrowing the media exception to non-corporate media companies may be constitutional, I argue against enactment of such a law given the already strong inequalities in our campaign finance system and the costs associated with its repeal. I conclude that the media exception should be eliminated only as part of a comprehensive campaign finance reform plan aimed at promoting political equality.