"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...