Issue ads legal again

The DC Circuit Court of Appeals just handed down a 2-1 decision that will make things very interesting in federal election law... at least until the Supreme Court takes a look. The court in Wisconsin Right to Life v. FEC has held that electioneering communications regulatons cannot restrict groups from airing ads that are attempting to impact public policy... the argument WRTL sought was for a narrow grassroots lobbying exemption. The Supreme Court now has a chance to clarify the scope of the original McConnell decision upholding BCRA... Is this a reasonable exemption or is it a gigantic loophole? I think that remains to be seen... if the law only works by restricting legitimate lobbying communications, then perhaps it wasn't such a hot idea to begin with. To be continued.

I'll note again that I always considered BCRA to be the Election Lawyer Full Employment Act of 2002... that was both funny and true.

* * *

UPDATE... Rick Hassen has more at the Election Law Blog here. Opinion is here (PDF).

Light blogging month

I will be serving on a DC grand jury this month, which will keep me away from some of the usual daily exposure to the political and podcasting world. I'm hoping to use some of the downtime to pull out some tips from the podcast expo, as promised, however!

Speaking of audio content... I was interviewed for Air America's State of Belief recently... feel free to listen here (mp3). I have a few other interviews floating about that I will eventually post someplace on the blog or elsewhere on the site. Never fear... I'll keep you posted.

Still a few more House seats open

Reminds me of this blast from the past, circa 2000.

Virginia recount reality check

Good morning to all bleary-eyed election return watchers! Looks like I was wrong about where the drama would unfold... I should have guessed Richmond. With Montana looking more and more like a Dem pickup, control of the Senate hinges on the Webb-Allen race.

Here's the scoop on the looming VA recount. First rule... stop listening to the people with the styled hair on tv. They're nice people, but they don't know a thing about the recount rules. Anything below 1% difference (abour 22,000 votes or so) and the loser may request a recount. Anything below .5% difference, and the loser can request a recount and the Commonwealth pays the bill. The recounts don't happen until after the vote is certified, which is 10 days after the election.

Of course by then it won't matter.

Huh? Wuh? Yeah... it won't matter. In Virginia, recounts are pretty much just running the numbers again, not a second look at the ballots. We learned that in the 2005 Attorney General race. So, where's the real battle? Today... during the final canvass. Whoever is up at the end of that is probably the next Senator from Virginia. Now, that won't stop some crafty lawyers from making the arguments that the ballots should be looked at again, but if last year is any indication, I don't expect that kind of argument to hold any water.

UPDATE... here's a great post from Ned Foley at Ohio State that summarizes the Montana law. Seems to me the procedure favors Tester at this point over Burns given his margins as reported by the Montana Secretary of State.

This town's apparently big enough for two Tim Mooney's

I kept having people mention how great I was on NPR on Wednesday. Problem was... I wasn't on NPR yesterday. Tim Mooney, however, was on NPR.

Confused? So were dozens of people I know throughout the country who swore they heard me in an interview regarding education funding. Mystery solved... Tim Mooney is a spokesperson for a group called First Class Education here in DC.

Have a good weekend everyone... and Tim? Ever consider going by Timothy? Just wondering...

Rick Hassen: Meet me in St. Louis(?)

Great post from Rick Hassen on where he thinks the greatest potential for election-related litigation that could impact the election... his choice is St. Louis, Missouri. I think he's right on the mark. While the stem cell research Measure 2 looks to be coasting to victory, the Senate race that seems to be tied to it is still neck and neck. All signs point to that seat possibly being the difference in which party has control of the Senate beginning in 2007.

My alternate nominee would be Nashville, Tennessee for similar reasons... the Tennessee Senate race is similarly close, and the Nashville suburbs may end up deciding the race. GOP candidate Bob Corker is from east Tennessee, Democratic candidate Harold Ford, Jr. is from Memphis to the west. That leaves Nashville - in the middle of the state - as another potential place for legal wranglings following a close and bitter campaign.

Stay tuned... election lawyers are (as always) standing by on both sides...

A bad cocktail

Earlier this year, IRS Commissioner Mark Everson called the mixing of politics, money and charities is, "a bad cocktail." He meant electoral politics, not issue or legislative politics, but the point was clear... charities need to steer clear of intervening in elections. He needs no other reason other than, 'cause tax law says so.

The Campaign Legal Center and Fran Hill have made some suggestions to stop some of the backsliding highlighted by uber-crook Jack Abramoff's improper use of charities, including Americans for Tax Reform. In short, they propose:

• eliminating exceptions in ethics rules, campaign finance laws or lobbyist registration laws for benefits channeled to politicians through nonprofit, tax-exempt entities
• any funds or benefits that a charity gives to a politician or a political committee should be traced back to the original contributor on regularly-filed disclosure reports
• politicians should be prohibited from raising money from third parties for charities they control, directly or indirectly
• politicians should accept absolutely nothing in return from organizations or any organizations related to charities they fundraise for
• an electronic database where members list all their contributions to charities, benefits they receive from charities and their leadership positions in such groups

Certainly an interesting proposal... the real question here is whether the traditional privacy afforded to donors to charities is outweighed by the desire/need for disclosure of certain transactions. If you believe Abramoff is an indicator species (ahh, there's that B.S. degree kicking in and making itself useful!) rather than an outlier, this might be a place to start the dialogue.

A break

As you know, I am a fan of the sublimely ridiculous Chad Vader videos on YouTube. Episode 4 is going big time, airing on GMA on October 11th. Check out the update from the creators here:

A nice diversion from some of the distubring stories out there...

RFK Jr. on voting machines

Another interesting piece from my former law professor on elections... this time on voting machines. This is a follow-up to his previous article Was the 2004 Election Stolen?. Check out, Will The Next Election Be Hacked? in the latest Rolling Stone.

IRS looking at churches

Interesting NYT article today:

I.R.S. Eyes Religious Groups as More Enter Election Fray

Of particular note:

“We became concerned in the 2004 election cycle that we were seeing more political activity among charities, including churches,” said Lois G. Lerner, the director for exempt organizations at the I.R.S. “In fact, of the organizations we looked at, we saw a very high percentage of some improper political activity, and that is really why we have ramped up the program in 2006.”

Churches are public charities, and for years have, to many, received a certain degree of a free pass from the IRS. After the release of Pub 1828 (PDF) and the PACI report (PDF) in February, the tide seems to be turning. It will be interesting to see how many religious organizations are the subject of audits for this election year. I have seen a lot of rather well-designed "how to avoid problems in your election-related activities" guides from left and right. It seems with the new attention, the faith-based community is also educating itself on the rules... which I chalk up as a good thing.

Charity or foundation?

The Washington Post called the world's largest private foundation a charity today. Seriously, not a big deal in the grand scheme of things... but also a fairly simple distinction.

Interesting how the terms "foundation" and "charity" are seemingly interchangeable, when they represent two very different types of entities. I suppose the foundation community might have spurred this on a bit by referring to grant-making public charities as "public foundations."

News of the day

Voting issues in MD and DC (about those electronic ballots...)

Colorado changes its rules (again)

Ohio, remarkably not imploding in the election-law sense... at least for today. Anything is possible with a Secretary of State policing his own gubernatorial election... we all know where I stand on that.

Also... Prof. Fran Hill lashes out at the IRS... for being too harsh on a nonprofit? Of course she's right in this instance, but I'm surprised by her stance to a certain degree. The last time I crossed paths with Fran -- whom I admire and respect greatly -- she was testifying before the FEC (PDF) that the IRS is not a good enough enforcer of its laws against 501(c)(3)s...

I know, I know... apples... oranges... just thought I'd mention it. It's that kind of blog post.

501(c)(3)s and elections

I just learned of this education opportunity for anyone wishing to learn more about the IRS rules on election-season activity by 501(c)(3) organizations. The teleclass is run by the IRS, and is broken up into two 1-hour sessions on September 19 and 20. For more information, check out the announcement here. Registration is required.

I will be producing a short session on election activity for 501(c)(3)s, and will post it here on the blog and at the nonprofit & political law section of tim-mooney.com within the next week or so. Stay tuned...

Chad Vader, Episode 3

A quick break from the world of nonprofit and political law to make way for the continuing saga of Chad Vader... Day Night Shift Manager

Breaking news... IRS rules in favor of NAACP

NAACP press release:

IMMEDIATE RELEASE

August 31, 2006
Contact: John C. White (410) 580-5125

IRS DETERMINES NAACP SHOULD RETAIN TAX EXEMPT STATUS

Investigation concludes Association did not violate tax laws or commit undue political intervention

The Internal Revenue has informed the National Association for the Advancement of Colored People (NAACP) that it has concluded its examination of NAACP activities and determined the Association did not violate conditions of its tax exempt status.

“We have determined that you continue to qualify as an organization described in IRC section 501(c)(3),” the IRS wrote in a letter to the NAACP dated Aug. 9. IRS official Marsha A. Ramirez said that a review of video footage of the Bond speech and other information indicated “that political intervention did not occur.”

The IRS launched an examination of the NAACP on October 8, 2004 after receiving complaints from several Republican members of Congress who said their constituents believed NAACP National Board of Directors Chairman Julian Bond crossed the line of non-partisanship in a speech at the NAACP 2004 National Convention critical of Bush administration policies.

“It’s disappointing that the IRS took nearly two years to conclude what we knew from the beginning: the NAACP did not violate tax laws and continues to be politically non-partisan,” said NAACP President and CEO Bruce S. Gordon. “Tax-exempt organizations should feel free to critique and challenge governmental policies under the First Amendment without fear of IRS intervention.”

“The good news is that we are vindicated,” said Bond. “The bad news for us and other freedom loving Americans is that it was initiated for partisan purposes to threaten our right to free speech. We’ll continue to speak truth to power.”

The IRS initiated an audit of the NAACP just one month before the 2004 presidential election and nearly three months before the end of the NAACP’s tax year. The IRS refused to explain the basis of its investigation for more than a year. The NAACP learned the basis for the examination only after filing four Freedom of Information ACT requests (FOIA).

The documents included complaints filed by Senators Lamar Alexander (R-Tenn.) and Susan Collins (R-Maine), then-Senator Strom Thurmond (R-S.C.), Representatives JoAnn Davis (R-Va.) and Larry Combest (R-Texas), then-Representatives Robert Ehrlich (R-Md.) and Joe Scarborough (R-Fla.) and political donor Richard Hug. In the interest of ensuring transparency, integrity and fairness in the administration of the tax law, the NAACP will release copies of all the documents provided thus far by request.

Founded in 1909, the NAACP is the nation’s oldest and largest civil rights organization. Its members throughout the United States and the world are the premier advocates for civil rights in their communities, conducting voter mobilization and monitoring equal opportunity in the public and private sectors.

###

Nonprofit law news

The good folks over at Alliance for Justice publish a near-daily list of news items regarding nonprofit law over at their nonprofit advocacy blog. I've added their news feed in the sidebar here... click on a headline for more info on the news of the day!

FEC rejects exemption

Reject may a strong word, but they voted it down 3-3. You can listen to the hearing here. Most observers say the courts will be handling the larger issue of whether BCRA can restrict legit grassroots lobbying... they're probably right. On to the pundits and reform groups...

Bob Bauer

Campaign Legal Center

Democracy 21

grassroots lobbying exemption?

The FEC is considering a temporary exemption for specific grassroots lobbying communications as we head toward the fall elections. Many advocacy groups support this exemption, as it will allow them to rally constituents to call members of Congress on some important bills next month. Reform organizations are against the proposal, seeing it as a potential loophole in the campaign finance regulations.

Take a look at the proposed reg here. I've never been a big fan of the "support, oppose, attack" langauge... it's completely vague and difficult to figure out in the context of a lobbying campaign. Can a group be critical of a congressman's votes, or is that attacking? Still, having seen how some organizations take advantage of the gap between express advocacy and electoral impacts *cough-cough... 527s* it's easy to understand why Campaign Legal Center and Democracy 21 are opposed.

Middle ground? I'd like to think there is a way to craft a reg that allows legitimate lobbying to occur during the blackout windows... but to date, no one has found that magic mixture of vowels and constanants that would please both sides of this debate.

Read more from CLC and Bob Bauer...

Grand re-opening

Greetings, and welcome to the new digs! I'd like to give special thanks to Apple's iWeb for helping make this site far, far better looking than I could have ever hoped with my meager html and css skills. If you're still Mac-phobic, I strongly suggest you give Apple a second look... it's amazing what one can accomplish with their gear!

As promised, this blog will shift content a bit. I'll be using this space to chat about the law, nonprofits, advocacy, podcasting, and a variety of other topics. In the very near future, I'll be posting some other blogs and resources here as well. On top of all that, I'll post some fun things from time to time that are utterly unrelated to any of the above. I think the continuing saga of Chad Vader fits in that category...

So, thanks for hanging out here in the tim-mooney.com lounge. More to come...

A new tim-mooney.com

There will be some big changes here at tim-mooney.com within the next few days... stay tuned for the new look and new content. In the interim, I've stripped down the blog for a more austere vibe while I truck in the new carpet and drapes...

Blogging to resume at some point...

... in the meantime, the continuing saga of Chad Vader, Dayshift Manager:

Something completely different

Enough seriousness. Introducing... Chad Vader: Day Shift Manager

Life is hard when you're Darth Vader's less-talented, less-charismatic younger brother and you manage a grocery store.

Ted Stevens... Series of Tubes

I don't know a lot about net neutrality, but I do know this... after hearing Senator Stevens' position I want to be on the other side. Enjoy this remix of his recent statements... apparently the internet is a series of tubes, and when his staff sent him the Internet the other day, it took awhile to get to him.

Improving elections

An interesting study was just released by Tova Wang via The Century Foundation on improving voter turnout. Most of these proposals have been floated out there before, but it's definitely a good read. Note that one of the bullets seems to conflict... at least on its face... with the Supreme Court's holding in LULAC v. Perry (PDF) regarding partisan redistricting. The report is available here (PDF). The suggestions are:

• Voters should be allowed to register up until and on Election Day.
• Election Day should be a national holiday.
• As long as a voter appears at any precinct within the county in which the voter resides, the provisional ballot cast by the voter should be counted for all countywide, statewide and presidential races.
• States should not have restrictive voter identification requirements.
• Social service agencies and departments of motor vehicles must comply with the National Voter Registration Act and provide citizens with an effective opportunity to register to vote.
• Take the partisan politics out of redistricting.
• Extend free media time to candidates.
• Parties and candidates should do more to personally engage voters.

The Dandy Warhols and I agree that Election Day should be a holiday, although I believe their support is a mere corollary to their stance that Every Day Should be a Holiday. This tortured musical reference was brought to you by Capitol Records. Have a good weekend...

"Top court upholds most of Texas redistricting plan"

The Supreme Court upheld most of the Texas redistricting pushed through by former Rep. Tom Delay... see the initial report here. Two quick hits... lawmakers can redraw the map anytime they want (so, if there's a change in party control, the Supremes just ok'd congressional redistrictin, it seems, every time), and the Texas legislature overstepped its bounds on some of the minority redistricting when they shifted lines around Hispanic neighborhoods.

More to come...

UPDATE... here's the PDF of the opinion.

The Onion

Campaign finance branches out.

The last person to weigh in on Randall v. Sorrell

The Supreme Court's release of its decision in Randall v. Sorrell coincided with a fairly busy time professionally, so I was unable to post even the most brief of thoughts here. Now, I'll have the distinction of being the last attorney to comment on the case...

Rather than repeat some of the comments I've posted below, I'll focus on the bigger picture... it seems we're in a bit of a transition in the area of election law and campaign finance regulation, and it's not apparent what the ultimate outcome of this transition will be. There are many that suggest that the new members of the Court will push campaign finance jurisprudence in the direction of deregulation... towards Justices Scalia and Thomas perhaps. After reading this case, I think that may be premature.

Given the Chief Justice's bent towards stare decisis (as promised in his hearings), it seems that Buckley may have a new lease on life. As I think back in the misty corners of the early 90s (yes, THAT far back), I remember being engaged in many a conversation that derisively referred to Buckley as "that money equals speech case." Now, it seems the venerable dino that I always remember starts on page 1 of its particular volume that contains it, is being referred to by some as a "super precedent" and by others as a landmark First Amendment case. I think this is the case because both are at least somewhat true. Buckley has survived constant attempts to limit or overturn it through the decades, and it indeed does stand on First Amendment principles.

So, back to the original point... where is the Court headed? My hope is that it heads in a somewhat alternative direction... one that allows for regulation, reporting or banning of activities that are truly corruptive of our system, yet is protective of speech through association. Unfortunately, the reform community has often taken the process too far, in my opinion. In an effort to rid the system of all corruption, it has sought to federalize virtually everything, regulating activities that do not do a thing to corrupt the federal election process, all in an effort to stamp out loopholes or perceived future loopholes. In the process, we could lose out on an important area of expresion... the ability for individuals to pool their money together to express common points of view. This freedom to associate (enshrined in the First Amendment, no less) is - at its heart - campaign finance reform. The small sums of money collect to become powerful against the potentially corruptive big money that may not necessarily have community or public interest at heart. So, the direction the Court should go towards would be to embrace some form of collective speech, yet develop and maintain strong regulation of corruptive influences. Piece of cake, right?

Mental note... last paragraph's policy wish list is full of holes... More to come on this thought process in later posts.

Interesting take

All four of my readers (hello again) know I often cite the writings of Rick Hassen when it comes to election law. I thought this was a very interesting take on the Chief Justice's POV in Randall v. Sorrell:

As I suggested in my recent article, No Exit? The Roberts Court and the Future of Election Law, 57 South Carolina Law Review 669 (2006), the Court could move slowly in this area, in the name of judicial modesty and stare decisis, to eventually dismantle Buckley. By deciding the case in this way, the Chief Justice gets to (1) strike down the Vermont limits; (2) put off a blockbuster and controversial issue to another day, knowing (because of the nature of Justice Breyer's test, that this issue will return to the Court); (3) signal as a more general matter that he is more moderate than Justices Scalia and Thomas, which could help him in both how the public views him and how often he can get the votes from the more liberal Justices in other cases.

Point three is the most interesting to me... it's been the subject of some banter between a colleague and myself for most of the term.

More on Sorrell

The election law bar begins to weigh in...

Rick Hasen's Election Law Blog
Allison Hayward's Skeptic's Eye
Bob Bauer's More Soft Money Hard Law

I will almost certainly have an opinion that I'll share later here (likely tonight), and also on the next Capital Caucus (likely tomorrow). My first impression is that we should never again try to guess what the Supreme Court is going to do on campaign finance cases. Better to wait and see what curveball they'll toss...

Sorrell comes down...

Election Law blog has the breaking news here... Vermont's spending limits were overturned 6-3, and Justice Souter wrote the majority opinion. More to come later today...

UPDATE: The opinion has been posted here (PDF). There is a conference call later today that I will unfortunately not be able to take part in... these initial "takes" on what an opinion means are usually interesting. Bottom line... the spending limits were knocked out based on Buckley, and the contribution limits were considered too low to comply with the 1st Amendment.

What I'm reading today

THE NEW POLITICAL MONEY GAME - Despite limits, big donations to independent groups keep cost of running for governor high, San Francisco Chronicle

Cap contributions, you get more independent expenditures. I would say "duh," but this blog attempts to highten the level of intelligent debate... except for that Capital Caucus thing. We're just a bunch of talentless hacks.

I think public participation in campaigns is a critical thing, but note that one person's "public interest group" is another's "special interest."

The GOP and Campaign Finance Reform, Bob Bauer's More Soft Money Hard Law blog

This is really a great read... isn't it interesting that the party of Ronald Reagan... the foe of government regulation... is the one spearheading the latest round of the most massive regulation of political speech? Food for thought.

Election suggestions

As I enjoy my lunch watching the World Cup match, I noticed this excellent piece over at TomPaine.com. In Recipe for a Fair Election, Steven Hill advocates for a few things I've been talking about here regarding election reform. Specifically, he calls for:

• Nonpartisan election officials
• Professionalization and training of election officials
• National elections commission and national standards
• Develop “public interest” voting equipment

Regarding the nonpartisan election officials, Brad Smith suggested on the election law listserv that it's more important to have "good" election administration because bad election administration by a nonpartisan official remains, well... bad. Agreed on that point. However, I think election officials should not be overseeing an election while simultaneously chairing a campaign effort. While they may be perfectly professional and run the election fairly, the appearance of impropriety alone warrants, in my opinion, a ban on wearing both hats.

NYT on Ohio elections

Great op-ed in the New York Times regarding the new "emergency" regs adopted by Secretary of State (and gubernatorial candidate) Ken Blackwell that will almost assuredly create voter regsitration problems. It's certainly not the first time a sitting secretary of state has been the official overseeing his or her own election, but given Blackwell's record and the nature of these regs that will make voter registration by organizations more difficult, the NYT op-ed is revealing. This is particularly interesting:

Throughout American history both parties have shown a willingness to try to use election law to get results they might otherwise not win at the polls. But right now it is clearly the Republicans who believe they have an interest in keeping the voter base small. Mr. Blackwell and other politicians who insist on making it harder to vote never say, of course, that they are worried that get-out-the-vote drives will bring too many poor and minority voters into the system. They say that they want to reduce fraud. However, there is virtually no evidence that registration drives are leading to fraud at the polls.

I've mentioned in a prior post that I believe no official overseeing elections should be allowed to chair a campaign... the conflict of interest is unavoidable. If this is true, shouldn't a secretary of state running for another office (or for re-election) relinTquish their oversight of the election as well? Certainly election laws already bar the use of government authority to aid a political race, however we have seen time and time again that official actions can, under color of law, be used to intentionally aid one side over the other. Perhaps a change is necessary here as well?

Crossing lines

Let me just say this... there's a certain point where even the rebel goes too far. The point where the actor who gains noteriety based on outrageousness passes the point of civility where even their regular supporters are left scratching their heads.

I call it the Phelps Line.

Fred Phelps is a nutjob, bringing a new meaning to the concept of homophobia. You've probably heard if him... he and his nutjob family have protested countless events with signs boldly declaring that "God hates fags." It got to be particularly low when he started doing this at AIDS victims funerals.

But recently, even some people that support his rather extreme take on scripture are probably embarassed to have considered supporting him. He has lately taken to demonstrating in front of military funerals, convinced that our morally bamkrupt society somehow has God rooting for IEDs in Iraq. Needless to say, this raises the hackles of even the most conservative of conservatives, given the craven act of disruption he and his gang perpetrate on grieving family members of our fallen soldiers.
His need to constantly outdo his outrageousness in order to perpetuate his ability to garner media attention to his pathetic "cause" has run out of room. Who, on God's earth, could remain on his side on this? Support this tactic?

Hence, the Phelps line. He's crossed it... he's now - I think - functionally meaningless. Oh, and he's getting sued by one of the Iraq vets' family. That's divine justice.

Who else may have done it? How about Ann Coulter's performance this morning? If you missed it, she criticized the 9/11 widows in a manner that certainly raised some eyebrows... something along the lines of, "I've never seen people enjoy their husbands' deaths so much." Granted, the attention she got on Today will undoubtedly sell more of her (very likely) shitty book (qualified only because I have not read it, but I suspect my reading it would only reduce my review from shitty to something sub-shitty). However, taking on 9/11 widows is certainly going to continue to whittle her own base down... one would hope. If she hasn't crossed the Phelps Line, she's dancing perilously close to it.

I'm ordinarily not one to mention a Fred Phelps or an Ann Coulter by name. Doing so just gets them exactly what they intend... publicity fueled by reaction to their outrageousness. The old saying goes, "there's no such thing as bad publicity." Perhaps that's true to a point... the Phelps Line.

Bob Bauer on Kennedy article

Perhaps I should rename this bobbykennedyjrarticle.com? Hopefully new issues will arise in the not-so-distant future, but for now... another comment...

Bob Bauer, an election law attorney I very much respect, wrote a fairly scathing piece on the Kennedy article here. I think Bauer raises an interesting argument that the Kennedy article may have a negative effect on progressives, but I also think he misses the point as well. I don't think Kennedy cares about advancing the progressive cause with this article... in fact, he's stated specifically this has little to do with politics, but the misuse of a system that is in some ways quite broken. Bauer suggests that this plays into the hands of conservatives who advance voter fraud as a mechanism to protect their electoral majorities. While I agree this has defininitely been the tactic of many Republicans, I do not think it means that it is tactically unwise to call out instances of irregularities in past elections where warranted.

More on the Kennedy article

Ohio State Professor Dan Tokaji, wrote a fairly extensive review of Robert Kennedy, Jr.'s Rolling Stone article on the 2004 election in Ohio. It's largely favorable, however he disagrees with the ultimate conclusion that the vote was somehow stolen. No matter which side you come down on, there seems to be overwhelming agreement that the system needs an overhaul of some sort to avoid the appearance of impropriety. Tokaji notes:

The most important question we now face, however, is not whether Kerry really won. It is instead what ought to be done about the very real and serious problems that emerged in Ohio and other states in 2004, which Kennedy exhaustively documents, for the most part quite accurately.

We are slightly over two years away from the next presidential election... assuming there is little chance of action in the waning days of this Congress, will the 110th Congress act, or will it rely on the current system?

Kennedy interview

Worth the watch, if the article was interesting to you... Tucker Carlson's questions devolved from merely challenging to overtly ridiculous, but at least he doesn't think Kennedy's a "crackpot." I'm sure he'll sleep better knowing that...



Carlson suggests that the accusations made by Kennedy requires a "grand conspiracy." A closer read of the article, I think, suggests that there was not so much a grand conspiracy, but more a "death by a thousand cuts." A few hundred votes here, a few thousand votes there - clearly Secretary of State Kenneth Blackwell and others did things under "color of law" (i.e. perhaps technically legal, but very shady) that disenfranchised Ohio voters. Was it enough to suppress the Kerry vote and expand the Bush vote to the degree that the election was stolen? I'm still not sure on that point.

2004 - loss or larceny?

My former law professor Robert Kennedy, Jr. has caused a bit of a ruckus this week with his recent Rolling Stone article, alleging that the 2004 election was stolen from John Kerry through a systematic and intentional series of illegal and unethicial acts. It's a very interesting read, particularly as someone who was a part of a legal voter protection team in Oregon (check out my first blog for the sidebar on that).

Is this too little too late? I don't think so. The Conyers Report, a 2005 report released by Rep. John Conyers, was perhaps a bit more timely. It raised some serious questions regarding the election administration in Ohio, and Kennedy relies heavily on it in his article. It seems worthwhile for the media and perhaps some enterprising bloggers to build on these two pieces and delve into the issues. In the interim, there are certainly some changes to consider for 2008:

• End the common practice where partisan officials can hold high positions for a candidate campaign and simultaneously administer elections (paging Katherine Harris and Ken Blackwell...)
• Resolve some of the issues regarding provisional balloting
• Consider Professor Rick Hassen's compelling argument that some election arguments should be rejected after an election has been held due to laches (for you non-election lawyers, it basically would mean "if you could have raised this argument before the election, and you're doing it after the election, you're too late.")

There are certainly others to consider... but it's the weekend. Enjoy...

"Dont mess with the bull young man, you'll get the horns"

Principal Vernon of Breakfast Club fame, RIP...

Delay withdrawal

The big news... Tom Delay has withdrawn from his race for Congress. The immediate question is... can he withdraw his name from the ballot? My initial read says yes.

My read says that the withdrawal is governed by Chapter 145, Subchapter D of the Texas Election Code. Specifically, Sec. 145.091 says that those withdrawal rules apply "to a candidate in a general or special election, except the general election for state and county officers." So, general election... not a state or county officer... that's Delay.

The rules seem to allow him to withdraw without too much hassle. Sec. 145.092 lays out a few deadlines depending on the nature of the filing deadlines for the office. I think the one that applies here is subsection (a) which would allow withdrawal up to the second day of early voting.

Caveat... I'm not a Texas election lawyer, and this statute very well could have been modified by court order.

* * *

Update - from BurntOrange.com:

Here is what we hear from independent Texas sources. Tom DeLay will resign, probably by the end of the week in order to allow Gov. Rick Perry to call a special election. The presumptive favorite is David Wallace, mayor of Sugar Land. ABC confirms to QR that DeLay will give up his Texas residency and move to the DC area. The story broke through a Time interview.

* * *

In Washington, there has been some speculation whether DeLay can remove himself from the ballot in Congressional District 22 at all, post-primary. Typically, under Texas law, the only way a candidate would be taken off the ballot is either to lie or to move out of state. The question, legally, is whether the ballot has been certified, and whether this timing – between the primary and run-off – is a loophole that gives the Republican Party a chance to offer up another candidate in Congressional District 22.

When contacted, the Texas Secretary of State's Office withheld comment pending legal review tomorrow morning. If the Governor can call a special election to replace Mr. Delay, it is not far fetched to believe that he can be placed on the ballot.

Check the full post out here.