The law of politics and the politics of law: election law, campaign finance, legislation, voting rights, initiatives, redistricting, and the Supreme Court nomination process
Rick Hasen's web log

"McCain's Camp Tests Fund-Raising Limits"

The New York Times offers this front-page report.

"Republicans slam group suspected of voter fraud"

AP offers this report from North Carolina.

"Online help for judges in election lawsuits"

AP offers this report. More information on the program, of which I was part (along with Ned Foley, Avi Rubin and Dave Douglas) here. As for the statistics cited in the article, you can find updated statistics here.

A Thought on the 60-Day BCRA Window

Back in around 2000, when McCain-Feingold was being debated, I recall that both Richard Briffault and I expressed the view that the 60 day window imposed in BCRA, which prevents corporations and unions from spending their general treasury funds on "electioneering communications" within 60 days of the general election, was too long. In election years, we both argued, important public policy issues (what I termed "genuine issue advocacy") about which corporations and unions might want to run ads could occur in September, with congress in session. This week's financial meltdown is an excellent case in point. Corporations and unions might want to run t.v. or radio ads on the financial bailout, unconnected to the election, but urging Obama or McCain to do something in particular about the crisis. To do so now, they'll have to argue it falls under the WRTL exemption.

But perhaps Congress should have enacted a shorter window, as Richard and I both had advocated.

More on the Michigan Voter Fraud Controversy

Following up on this post, and as the underlying dispute breaks out beyond the election law listserv), I wanted to comment a bit on the "46 dead voters" point in the McComb County Republican party press release.

Dan Lowenstein, writing on the election law listserv (and quoted with permission), believes that my only problem with Trevor was his failing to distance himself from the hyperbole contained in the letter and not with the "factual issue" involving the 46 dead voters allegedly voting in Michigan elections.

I also take issue with the factual claim. I would not be surprised if real certified death certificates were turned in to the Michigan Supreme Court. But that hardly proves that voter fraud was involved. Michael McDonald has pointed out that the most plausible explanation for most claims of "dead people voting" is election administration incompetence, most likely someone signing on the wrong line in the poll book. Here is a nice story from Connecticut where over 100 allegations of dead voters were made, and it turned out that not a single one was proven; but there was plenty of election administration incompetence. And we shouldn't forget the highly policitized nature of the Michigan Supreme Court.

"Democracy 21 Calls on Attorney General to Remove Director of Election Crimes Branch from any Decision Making Role Regarding 527 Groups, After Director Makes Comments that Appear to Immunize 527 Groups from Justice Department Investigation or Prosecution"

This press release comes from Democracy 21.

Federal Court Challenge to Nevada Initiative Process Filed

See here.

Lots of Interesting Stuff in this Week's Electionline Weekly

Check It Out.

"Nader, Barr muscle onto the Nov. ballots"

The Politico offers this report.

Bauer v. Potter on Voter Fraud Allegations in Michigan

Bob Bauer's latest post sets forth an issue that's been discussed on the election law listserv.

I won't restate the debate here, but let me say that after reading Trevor's post and Bob's response, I stand by my claim that this charge is unsubstantiated, and I am very troubled that Trevor has still said nothing to distance himself from the McComb County Chair's statement about "the kind of ballot integrity Democrats favor in Michigan."

Lest anyone think I simply agree with whatever Bob says (and regular readers of this blog would know that I do not), I am ever more convinced that the primary purpose of Bob's suit against the Republicans in Michigan is for p.r. purposes. It reinforces the voter suppression meme of the Democrats. To be clear, there is some genuine voter suppression activity (which I have chronicled). But I believe that claims of voter suppression are also brought out by Democrats for political purposes. I also think, as I've chronicled ad nauseum on this blog, that Republicans use unsubstantiated claims of voter fraud all the time for political purposes.

"Law dean writes of regret over errors"

The Times Picayune offers this report, which begins: "Tulane Law School'' dean has apologized to the Louisiana Supreme Court for what he called 'numerous errors' underlying a recent Tulane Law Review article about a study that showed a high correlation between lawyer and litigant campaign contributions to justices and decisions favoring the donors." Howard Bashman has more information.

"Barr Loses Bid to Halt Mailing of Ballots"

The latest from Texas.

"Early Voting for President Starts Today"

Time offers this report. Here's the WSJ's survey of possible election snafus.

"Watch Out Donald McGahn II!!!"

That's the headline at MSNBC's First Read.

"Miss. governor will move Senate race up on ballot"

AP offers this report. The decision is here (via Daily Kos).

"Barr Sues Texas for Excusing Late Filing by Republican and Democratic Presidential Candidates"

Ballot Access News has the details.

"Advancement Project and ACLU Sue Michigan Secretary of State Over Unlawful Voter Purging"

See this press release. You can find more documents related to the lawsuit here.

Another Virginia County Bails Out from Section 5 Coverage

Gerry the Bailout King does another one.

Center for Competitive Politics v. NRCC

See here.

"FEC Tackles Rule on Bundling of Campaign Donations"

CQ Politics offers this report.

"Rep. Don Young Wins Alaska House Primary"

AP reports that a request for a recount is possible.

"Democrats, Florida elections officials criticize GOP mailing"

The St. Petersburg Times offers this interesting report.

Interesting Data on Presidential TV Advertising from the Wisconsin Advertising Project and CMAG

See here.

"House Passes Veteran Voter Drive Bill"

AlterNet offers this report.

"Nonpartisan task force will investigate voter fraud allegations"

The Milwaukee Journal-Sentinel offers this report.

"Obama Campaign Sues in Michigan Over Alleged Voter Fraud"

The American Lawyer offers this report. This is a very poorly written headline, given the story. The concern is over voter suppression, not voter fraud.

"2 voters sue Ohio elections chief"

The Cleveland Plain Dealer offers this report.

"High Turnout, New Procedures May Mean an Election Day Mess"

The Washington Post offers this front-page report.

"GOP Money Power Takes On Obama Fundraising"

NPR offers this report.

Bauer on Whether Democratic Claims of Vote Suppression are Equivalent to Republican Claims of Voter Fraud

Bob Bauer offers some very interesting thoughts. I hope to respond in the next few days, when I'm not so snowed under with other obligations.

"Democrats Challenge Van Hollen's Voter Registration Lawsuit"

AP offers this report from Wisconsin.

"Officials Challenge Senate Race Ballot"

The Jackson Clarion Ledger offers this report.

"McCain Able to Skirt Limits of Federal Financing"

The Washington Post offers this important report, which echoes a point I made a week ago. Stop thinking of the money race as Obama v. McCain. Start thinking of it as Obama + DNC v. McCain + RNC (with state parties coming in on both sides as well). Thinking of it that way, Obama's money advantage evaporates.

(And we should stop focusing on the $400 million Obama number. Much of that money is gone---spent on the primary and on early general election action. Much more important is Obama's current $77 million cash on hand going into September, and more money rolling in.)

"Democrats Sue Michigan G.O.P. on Voter Issue"

The NY Times offers this report on its "Caucus" blog about this complaint filed by the Obama campaign and the DNC. More in the Wall Street Journal.

Given that the head of the McComb County Republican Party not only denied he was going to use the foreclosure lists for vote caging purposes but has now threatened to sue the newspaper which printed the original story for libel, what explains the lawsuit?

Some blog readers may know that I also teach Remedies, and I was just explaining to my students last week that you can't get an injunction against a defendant unless you can prove "propensity," that the defendant is likely to engage in the action sought to be enjoined. So this comes down to one of two things: (1) the Democrats don't believe the denials of the county Republicans, and so even if they can't get an injunction because they can't prove propensity, they can at least get party officials to come to court and swear they are not going to engage in the conduct. (2) This is great p.r. for Democrats. Just as Republicans bring up (often unsubstantiated) charges of voter fraud close to election day, Democrats do the same with voter suppression. It helps motivate the Democratic base to argue that Republicans are trying to disenfranchise voters---especially here, middle class voters who are down on their luck and stuck in the current financial mess with a foreclosure problem.

Whether it is more (1) than (2), I don't know.

"GOP-targeted group: 'Your complaint is frivolous'"

The Miami Herald follows up.

"Democrats Reject Kurita Win"

This interesting piece appears in The Tennessean.

"Are They Really Safe?"

Reid Cox has written this interesting post on the Center for Competitive Politics blog. He asks: "did the director of DOJ's election crimes branch, Craig Donsanto, really take independent groups off the criminal hook, or just their donors?"

Programming Note

I'm speaking about election administration and the courts at the Appellate Judicial Attorneys Institute in Sacramento today (with Chuck Bell and Lance Olson). Posts will appear again later tonight or tomorrow morning.

Bauer on Hasen on Presidential Primary Financing

Bob Bauer offers these thoughts on the new draft I have posted to SSRN.

DOJ Official Says Agency Won't Go After Contributors to 527s Who Are Clearly Breaking the Law...

and that "the legal standard established by the WRTL opinion was not clear enough for a criminal prosecution." See this must-read BNA Money & Politics Report.

"Judge: Barr will be on Pa.'s presidential ballot"

AP offers this report. No word yet if the Republicans will appeal. Could Barr's presence make a difference for the Pa. outcome? Yes, if the race is as close as this new poll suggests.

"Could Obama and Barbra break a record in Beverly Hills?"

See this post at an LA Times blog. Meanwhile, TPM reports on efforts of outside Democratic groups to potentially help Sen. Obama.

"Helping vets vote should be law, senator says"

Marine Corps. Times offers this report.

"Interest Groups Step Up Efforts in a Tight Race"

The NY Times offers this report.

"McCain-Palin 2008 Launches 'Honest and Open Election Committee'"; Will It Make A Difference in the Election Administration Wars?

The McCain campaign has issued this press release, which begins:

The McCain-Palin 2008 campaign today announced the formation of the Honest and Open Election Committee, with a mission to ensure that every qualified citizen has the opportunity to vote in a fair and transparent manner. The committee will work with state and local election officials to anticipate, and where possible resolve in advance, problems likely to arise on Election Day.

The advisory committee will be co-chaired by former United States Senators John C. Danforth and Warren B. Rudman. The committee also includes current and former members of Congress and former state secretaries of state, election officials, and state attorneys general, along with prominent academic experts in election law. The diverse composition of the committee reflects the McCain-Palin campaign's desire to put partisan politics aside in the hope of seeing a fair and transparent election in November....

The Honest and Open Election Committee requested a dialogue between the McCain-Palin campaign and both the Democratic National Committee and the Obama-Biden campaign in letters sent today.

You can find out more about the efforts here. (Note that the first goal of the group is one Democrats would endorse; the second goal, "No qualified voter should have his or her vote canceled or diluted by illegal votes," echoes Republican (but not Democratic) calls for voter identification laws and a concern (in my view, mostly unfounded) about voter fraud.)

My initial reaction to this is that in spirit this is a step in the right direction, but I don't expect it to stop one bit aggressive efforts to challenge election administration laws in the battleground states.

To explain, while I don't know everyone on the impressive list of members of the committee, those I know personally (along with Trevor Potter, Sen. McCain's general counsel), are people of the highest integrity.

But while the McCain campaign can take the high road and legitimately play by the rules, it can watch as state and local Republican committees fight the election administration wars. For example, as I've chronicled, the Republican Party in Ohio is seeking to shut down an effort to allow first time voters to vote absentee at the same time they register to vote during a five day period at the end of this month, despite the fact that the law (passed by the Republican legislature) allows this procedure. And Trevor Potter, in an effort to refute claims that a local party in Michigan was going to target for vote challenges voters whose homes had been foreclosed, forwarded to the election law listserv a statement from the McComb county chairman. The statement not only denied such an effort would take place, but it included the following unsubstantiated charge: "in 2004, at least 46 long-deceased voters managed to rise from their graves and vote in heavy Democrat-leaning precincts. That's the kind of ballot integrity Democrats favor in Michigan." Not a word from Trevor distancing himself from this language.

This is not to say that only Republicans have played the election administration game this year. I've also criticized Ohio Dem. Secretary of State. Brunner for how she plans to handle certain absentee ballots sent in by McCain supporters.

So unless the McCain campaign and the Obama campaign are willing to make a concerted effort to rein in state and local party election administration efforts, as well as the actions of partisan election officials in battleground states, I'm dubious this effort will make any difference in the election administration wars. As for the possibility of bipartisan cooperation Bob Bauer's latest posting shows considerable distance between the parties regarding who is responsible for the election administration wars.

NRCC Files Complaint With FEC Against Group, Alleging It Must Register as Political Committee

See here.

"Voting in 2008: 10 Swing States"

I just recevied a press release about this new report: "As election officials brace for record-breaking voter turnout on Election Day, a close examination of voting preparedness in 10 swing states shows that significant problems in the basic functions of the American election administration system persist, and in a few cases have worsened over the last few years, a new report by Common Cause and The Century Foundation shows."

"Liberal 527 Groups Target McCain With Ads"

NPR offers this audio report.

"More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates"

I have posted this draft on SSRN. A revised version of this will appear eventually in a book coming out of the UC Berkeley IGS conference last spring on the nominations process. The data in here are currently only through July, and I plan to do a revision once the final primary money numbers from 2008 are available. But I think those interested in the role of money in the presidential primary season will find some of the charts and data here pretty interesting. Here is the 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

"The Power of of Political Misinformation"

See this very interesting column by Shankar Vendantam in the Washington Post.

Move von Spakovsky on Absentee Ballot Fraud

See here.

"Hood Takes Gloves Off Over Barbour Ballot Scheme"

The latest from Mississippi.

"Ohio Secretary of State Prevents Vote Caging"

The Politico offers this report.

"Critics: 'No Match, No Vote' Law Could Keep Voters From Polls"

The Ledger (Fl.) offers this report.

"States Restore Voting Rights for Ex-Convicts"

The New York Times offers this report.

"Va. Orders 200,000 Additional Voter Registration Forms"

The Washington Post offers this report.

AIP Gearing Up for More Anti-Obama Ads

This article appears in today's Washington Post. The final paragraph states: "American Issues Project is organized as a qualified 501(c)4 under Internal Revenue Service guidelines. As such an entity, AIP must use 60 percent of all its funding to make issues-based appeals but can use the remaining 40 percent to directly advocate for or against the election of a candidate. Any money spent for express advocacy must be reported through the Federal Election Commission, meaning that donors to the group will eventually have their identities revealed."

Whether or not's that's true as a matter of tax law (and whether there are other tax law issues with AIP), the fact remains that there are serious campaign finance questions raised by AIP's activities. First, if the group has a "major purpose" of influencing the outcome of federal elections (and there's no evidence it has had any purpose other than influencing the presidential campaign), then the group should be treated by federal camapign finance law as a political committee. Among other things, political committee status means the group would be violating the law if it took more than $5,000 from individuals. Here, Mr. Simmons has already given almost $3 million to the group. Second, there's some good reason to believe that large donors to the group such as Mr. Simmons are violating the aggregate individual $108,200 campaign contribution limit for federal elections. (There may be some constitutional arguments against these limits, but I have not heard them yet raised by Mr. Simmons or AIP.)

"Bad voter applications found"

The Detroit Free Press offers this report, which begins: "Several municipal clerks across the state are reporting fraudulent and duplicate voter registration applications, most of them from a nationwide community activist group working to help low- and moderate-income families. The majority of the problem applications are coming from the group ACORN, Association of Community Organizations for Reform Now, which has a large voter registration program among its many social service programs. ACORN's Michigan branch, based in Detroit, has enrolled 200,000 voters statewide in recent months, mostly with the use of paid, part-time employees."

"In August, Obama Raised $66 Million"

The New York Times offers this report. While Obama's fundraising breaks a record, the DNC's fundraising was much more anemic, and as I've argued, the important comparison is Obama + DNC versus McCain + RNC.

And in Election Adminstration Controversies from Wisconsin....

The Wisconsin State Journal offers McCain's mailer creates controversy.

The Milwaukee Journal-Sentinel offers Observers fear Van Hollen's election lawsuit will cause problems.

"Democratic Party committee throws out state senator's victory"

AP offers this interesting story from Tennessee.

Please, Please, Sens. Obama and McCain---One of You Make it a Blow Out in Florida

The South Florida Sun Sentinel offers Election problems raise questions about November vote in Palm Beach County.

"Obama's Fundraising Machine Still Rolling as Campaign Stays Coy"

Bloomberg offers this must-read report.

Dusting Off the Explainer

A few weeks ago, I linked to this Slate Explainer on what the parties would have to do to replace a presidential or vice presidential candidate on the ballot. The occasion there was my speculation (now quite unlikely) that Sen. McCain might drop Gov. Palin from the ticket.

I started thinking about the Explainer this morning when I read this Los Angeles Times article on Sen. Biden releasing 10 years of his tax records. The article concludes by noting: "Biden, who underwent brain surgery for a life-threatening aneurysm in 1988, has yet to release his medical records."

Andrew Sullivan has been beating this drum for some time, and Ben Smith got assurances on Sept. 4 that they were coming "very soon."

Well it certainly didn't take the campaign long to release the tax returns, once it became clear that Palin's tax returns might present an issue for the Democrats. The delay in releasing those health records makes me wonder if there is something in there that is worrisome.

Ohio Election Administration Update

Yesterday I criticized Sec. Brunner for her position on how she intended to treat certain absentee ballots submitted without an unnecessary box being checked. Today comes word that the Secretary has taken some commendable steps toward not disenfranchising these voters. Whether this can all be done in time to avoid disenfranchisement, I don't know.

Meanwhile, Moritz has posted the writ of mandamus in the five day window suit I blogged about yesterday. So far, I haven't heard from anyone answering my question about the Republican position.

"In Palm Beach County it goes from missing ballots to too many ballots"

The South Florida Sun Sentinel offers this report.