Votelaw, Edward Still's blog on law and politics: December 2002 Archives

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December 30, 2002

Op-ed on McCain Feingold

Charles Fried, former Solicitor General, former Justice of the Massachusetts Supreme Judicial Court, and professor of con law at Harvard has an op-ed in today's New York Times. Fried points out a provision in the McCain-Feingold law that will prohibit 501(c)(4) organizations from making "electioneering communications" (that is, menitoning a federal candidate via an ad on TV, radio, cable, or satellite) within 60 days before a general election or 30 days before a primary. This is one of those exceptions to an exception -- but Section 204 (the provision Fried mentions) completely swallows the exception for 501(c)(4) organizations found in Section 203.

This is one provision I am fairly sure will be struck by the courts.

December 29, 2002

'Vote bribers' caught in Kenya from South Arfica reports that 2 people have been arrested in Mombasa, Kenya, passing out 100 shillings (US$1.25) to pay for votes for Kanu, the ruling party of Kenya.

The official site of NARC does not have the list of bribery allegations mentioned in the News24 story, but the site is worth looking at because it allows supporters to make contributions, download posters and stickers, and read up to date news stories.

December 28, 2002

Kenyan election

It appears that Mwai Kibaki of the National Rainbow Coalition (NARC) Party has won the presidency over Pres. Daniel arap Moi's handpicked candidate, Uhuru Kenyatta (the KANU candidate). The latest results I have seen show Kibaki with 64% of the vote. Nairobi's Sunday Nation has a roundup of the British press stories alleging fraud in the election (usually by the KANU) or saying that it was the cleanest election in the "multi-party era." The Kenya African National Union has ruled Kenya for the 39 years since its independence from Britain. has an interview with Pres. Moi. A short sample:

Q: The results have not been officially announced yet, but it looks as if the opposition may win...

That’s the way democracy goes.


Demographic change and electoral politics

If the Republican ticket were to take the same percentages of the Hispanic, black and white vote in 2004 as it did in 2000, said Matthew Dowd, the White House's pollster, it would lose the popular vote by three million ballots and the Electoral College. In 2000, Mr. Bush received 544,000 fewer votes than Al Gore but won the Electoral College.

"This is not only something the president cares a lot about, but also something that's a political necessity for Republicans," Mr. Dowd said.

New York Times, via P.L.A. - A Journal of Politics, Law and Autism

December 27, 2002

Campaigns as a hidden tax on business?

Former Gov. George Ariyoshi of Hawai'i has a column in the latest Hawaii Business Magazine outlining some changes needed in the business-government relationship. He says that campaigns are a hidden tax on business because businesses pay so much of the campaign costs.

Frist and the Marion Barry comment

"[Jim Sasser is] sending Tennessee money to Washington, to Marion Barry ... While I've been transplanting lungs and hearts to heal Tennesseans, Jim Sasser has been transplanting Tennesseans' wallets to Washington, home of Marion Barry."

... Bill Frist, 1994 campaign stump speech.

I first saw this reported at Talking Points Memo about 2 weeks ago. Today, Sam Heldman weighs in on the controversy with a perceptive comment on the period around 1994 when he had personal experience with white folks believing that the black mayor of Birmingham had to have done something wrong because blacks were incapable of governing themselves. See Sam's comments here.

I have noticed the same phenomenon over the years. I attributed it partly to the history text books we grew up using in school. These invariably pointed to Reconstruction as a corrupt period in Southern history and a period of "black rule." I often thought of doing some paper on the subject -- which would mean tracking down and reading the history text books used in the South (and maybe elsewhere) for several decades. My scholarly dedication would evaporate like the dew in the sun as I contemplated the task.

By the way, both points are exaggerated. There was little "black rule" in the South. No black was ever elected governor; I think one served briefly when the governor died or resigned in Louisiana or Mississippi. I think only South Carolina had even one house with a black majority.

Green Party suit in NY

The Brennan Center has filed suit on behalf of the Green Party to prevent New York State from decertifying the party and listing all its registered members as unaffiliated. The New York Law Journal has an article on the suit. The Brennan Center website has a news release on the suit including a link to the complaint, as well as a press release re the temporary restraining order.

December 26, 2002

Campaign finance criminal case

Mark Jimenez was indicted 4 years ago for using 23 employees to make illegal campaign contributions to Pres. Clinton, Sen. Kennedy, and Sen. Torricelli, among others. He fled the country just before the indictment, returned to his native Phillipines, and was elected to the Phillipine House of Representatives. He is now being extradicted to the U.S. to stand trial. "I'll take my chances," he told reporters. Read the whole story in The Miami Herald.

Follow the (Frist) Money

Nathan Newman has an item about the campaign contributions Frist has received and how it correlates with his voting record.

December 25, 2002

How the Web Will Change Campaigns

Matthew Hindman has an op-ed piece, How the Web Will Change Campaigns, in the New York Times today. I think he underplays the effect the BCRA will have on Internet campaigning. He is correct about the use of campaign websites for raising money, but he does not mention that the FEC decided that most Internet campaigning will not be regulated.

December 24, 2002

Maryland campaign finance

Campaign watchdog groups in Maryland are complaining that candidates (especially those in non-competitive races) are spending money on things like Christmas and Valentine cards, according to the Herald-Mail (Hagerstown, MD).

Of course, if these guys had spent their money on negative campaigning, Common Cause would be complaining about that, too.

Rep. Matsui to head the DCCC

The Sacramento reports today that House Democratic Leader has chosen Rep. Robert Matsui of California to head the Democratic Congressional Campaign Committee, the principal fund-raising body for Democratic House candidates.

Smart Mobs and GOTV

This item is not exactly my usual beat, but its Christmas Eve and the news is sorta slow. Oliver Willis ("Like Kryptonite To Stupid") has an item about the use of wireless and email commuications by young voters in South Korea to get out the vote for No Mu-hyon in the recent presidential election. Willis concludes: "Considering how the "get out the vote" movement was crucial to the midterms for the GOP, there is much to be learned." True.

December 23, 2002

BCRA draft forms

The FEC has released draft forms to be used for reporting under the BCRA.

Campaign finance stories in the states

Here are several examples of newspapers "following the money" by looking at who makes contributions and what they might get in return.

The Tyler Morning Telegraph reports that most of the money in the Republican legislative campaign in Texas came from 48 wealthy families.

The Atlanta Journal Constitution reports on the DeKalb County school board giving contracts to firms that contribute to its members campaigns.

The Milwaukee Journal Sentinel reports that 13% of the money raised by city aldermen comes from bars and restaurants with liquor licenses.

December 21, 2002

McConnell v FEC -- secret documents

Earlier I noted that several news organizations have asked the McConnell v FEC court to unseal all the confidential portions of the depositions and documents in the case. The Justice Department has opposed the motion with an argument that sound like it is trying to protect informants in a case of extortion. Oh, maybe they are.

What is really happening is that DOJ wants to protect the informants from public embarrassment, not from disclosure to the "criminals." Their names and testimony are known to everyone in the case. We are the ones in the dark.

Let's say the Wiggit Corp. paid "non-federal" funds (soft money) to Sen. X's leadership PAC because Sen. X said that he needed some money (hint, hint) to get reelected so that he could help Wiggit on its efforts to obtain legislation relieving it of liability for the exploding wiggit problem. Don't you think the public has a right to know that?

December 20, 2002

FEC and the Millionaire Opponent regs

AP would have us believe FEC wraps change to campaign finance law. While the FEC is claiming to have finished its Congressionally-mandated regulatory changes to comply with the BCRA, in fact it is still at work on regulations. The FEC has published a proposed set of regs (a Notice of Proposed Rulemaking) on "leadership PACs." Read 'em here.

Back to the so-called "Millionaire's Amendment" -- I prefer the term "Millionaire Opponent provision." The interim final regs are 142 typed, double-space pages with a 35 page example. Ellen Weintraub, the Commission chair, has suggested the staff ought to tighten up the verbiage a bit before the final-final regs are issued. While I can't point you to the actual adopted regs, here is the agenda for yesterday's meeting with links to the draft (and a correction).

"N.C. Rep. Admits Making Stupid Comment "

That was the headline AP and/or the Washington Post assigned to this article. This is one of those headlines that ought to be set in type (if newspapers still did such things -- I suppose they could just create a macro now) and kept around for ready use.

Maine, yet again reports another wrinkle in the House District 80 race -- the one with a one-vote margin for the Democratic winner. A voter claims that he asked for an absentee ballot for HD 80, did not get it, so he registered and voted elsewhere in the state -- apparently where he really lives. Gosh, if he had gotten that absentee ballot, he would have voted for the Republican candidate and the election would have been tied. So he wants a new election. Uhh, yeah.

Florida election reforms evaluated

Florida created a task force to review its election laws and make additional recommenations for changes. You can see the report
here. The first recommendation is ...
Conform Florida’s voter registration system to new Federal requirements for a standardized, statewide voter registration system under the Help America Vote Act. Through statute and rule by the Florida Department of State, Florida should take specific steps to change its existing voter registration system so that it can advantage of federal funding available under the Help America Vote Act.

How's that for a hard hitting report? Really, election administration is dull stuff, but it is extremely important. The task force also recommends that the runoff primaries not be used in 2004, that early voting be expanded, and that different types of driver's licenses be issued to citizens and non-citizens (to make polling place identification easier). All of these (and other changes proposed) will make a big difference in the election procedures.

December 18, 2002

Iowa absentee voting campaign

The Iowa Democrats ran a masterful absentee voting campaign in this fall's election. Now the GOP is seeking to learn from it, they say, by copying up to 20% of the absentee ballot applications in five counties. Read the story in the Quad-City Times. I don't know what you can learn by looking at that many applications. Seems like just a few would do. And the more important thing is the system and process the Democrats used in gathering those requests. The GOP is only looking at the end result. They need to do the thing Republicans do so well -- break into the Democratic HQ and steal the play book.

Maine election contests and recounts

This article from says that the vote in the Senate committee was not unanimous on the votes that actually won the Democrats the swing seat in the Senate, contrary to what I reported here yesterday.

Now a House committee is taking up the recount of one seat where the Democrat has a one vote margin and there are 8 uncounted absentee votes and 2 other disputed ballots.

Wisconsin campaign finance reform struck down

"A federal judge Wednesday struck down a [Wisconsin] state campaign finance reform law passed last summer that reform advocates said was doomed from the start and which Governor-elect Jim Doyle described as a 'sham.'" See the full story on JS Online.

I can't find the act online and the court's website gives me an error message when I try to pull up the PDF of the decision. I will keep trying.

UPDATE: The act is 2001 Wis. Acts 109 available here. The court's web site is still giving me problems with the final decision, but an earlier ruling on the motion to abstain in Wisconsin Realtors Association v. Ponto, No. 02-C-424-C, is available here. The URL for the final decision is here, and you might try it to see if you can get it.

McConnell v FEC -- secret documents reports that several news organizations (including ABC) have filed a motion with the federal court considering the McConnell v FEC case to have the court unseal all the briefs, affidavits, depositions, and documents submitted to the court. The court had allowed parties and witnesses to designate any part of the testimony as "confidential." Because of this, nearly every party filed a brief and then redacted it for public distribution.

A great way to evade the coordination rules

Klausfiles on had this comment on 14 November:

In an earlier post, I noted Eric Black's point that Minnesota GOP candidate Norm Coleman was able to communicate publicly what it might have been illegal (under campaign finance laws) for him to communicate privately -- namely that he really didn't want the National Republican Senatorial Campaign Committee to run negative TV ads against Mondale... But, as alert kf reader B.B. points out, this public/private distinction is a little more subtle now than it used to be, no? What if Coleman had just had a blog, where he routinely hinted at the kinds of new ads, media buys and other free speech activities he hoped other concerned citizens might undertake against Mondale? ... And what if the URL for this "public" blog wasn't all that widely known? ... Maybe most candidates would decide that the safer course is to be as public as possible, as Coleman in fact was. But the blog route might allow pols to "publicly" communicate more detailed instructions to those "independent" campaigners they aren't allowed to "coordinate" with. ...(e.g.:"Our campaign is doing really well in the St. Paul area. Duluth is coming around and we certainly hope and expect to be where we want to be in that area by election day. They are really worried about high taxes up there, aren't they?")

Minnesota state senate recount

Minnesota has an unusual recount case: one of the election officials took 17 ballots home and burned them. According to the Duluth News, the election judge apparently thought that the ballot papers (all were absentee ballots) were not to be counted at all. Since the Democratic candidate Sparks won by 11 votes (out of 31,000 total), incumbent Sen. Schwab (R) felt she had not had a full count. She took her case to the State Canvassing Board (the Republican secretary of state and 4 judges). The Board credited Sparks with 8 of the 17 destroyed ballots and did not count the other 9. According to this story, the final count was still 11 more for Sparks. Schwab has now filed a court action to overturn the Canvassing Board decision. This story has another explanation of Sparks' 11 vote lead.

December 17, 2002

South Dakota vote fraud case

The blog Talking Points Memo: by Joshua Micah Marshall has an interesting take on the South Dakota fraud allegations by the Republicans. It seems that the affidavits were prepared in advance and then “'I just went through the document, read it, asked them if it was correct, and if they wanted to sign it,' said Vanneman, a notary public who verified the statements."

The Talking Points Memo author is not a lawyer or he would know that's a common practice. How many of us have not prepared affidavits with fill-in blanks for the affiant's name? It's not like the Republicans tried to hide this fact, either, as it is immediately apparent when one person reads several identical affidavits. In an earlier post, Marshall does make a good point about the efforts of the Right to portray this as a scandal and coverup.

Instant Runoff Voting proposed in Vermont

The Rutland Herald reports on the coalition that will seek legislative support for the pasage of Instant Runoff Voting (IRV). IRV allows each voter to cast a ballot indicating her first, second, etc. choice. All ballots are counted according to the first choice. If one candidate gets 50% + of the votes, she wins. If not, the candidate with the lowest number of first choice votes is eliminated, and the ballots of that candidate are counted for the second choice on each ballot. The counting continues until one candidate has received a majority. For more information, see the Center for Voting and Democracy's explanation of the system.

Maine senate recount / contest

A bipartisan Senate committee voted unanimously if favor of the Democratic candidate for the last Senate seat after reviewing 44 disputed ballots. The has the story. The committee voted on each ballot, some of which had write in votes, some with both candidates marked, and others with marks in places other than the box for voting.

Trent Lott video clips has some clips of Lott's interview.

If Lott resigns

Daily Kos has a post about the Mississippi special election rules:

If Lott resigns this year, the governor would appoint a replacement and call special elections within 90 days.

If Lott resigns next year, the governor's appointee would serve until the 2003 general election (in November).

Either way, we would have a Senate election in Mississippi next year. But -- and this is an important "but" -- a Democrat would likely fill the sit in the interim deadlocking the Senate 50-50.

Check out the whole story at Daily Kos: The rules for MS special elections.

Here is the Miss. Code on the subject:

§ 23-15-855. Elections to fill vacancies in office of U.S. Senator; interim appointments by Governor.

(1) If a vacancy shall occur in the office of United States Senator from Mississippi by death, resignation or otherwise, the Governor shall, within ten (10) days after receiving official notice of such vacancy, issue his proclamation for an election to be held in the state to elect a Senator to fill such unexpired term as may remain, provided the unexpired term is more than twelve (12) months and the election shall be held within ninety (90) days from the time the proclamation is issued and the returns of such election shall be certified to the Governor in the manner set out above for regular elections, unless the vacancy shall occur in a year that there shall be held a general state or congressional election, in which event the Governor's proclamation shall designate the general election day as the time for electing a Senator, and the vacancy shall be filled by appointment as hereinafter provided.

(2) In case of a vacancy in the office of United States Senator, the Governor may appoint a Senator to fill such vacancy temporarily, and if the United States Senate be in session at the time the vacancy occurs the Governor shall appoint a Senator within ten (10) days after receiving official notice thereof, and the Senator so appointed shall serve until his successor is elected and commissioned as provided for in subsection (1) of this section, provided that such unexpired term as he may be appointed to fill shall be for a longer time than one (1) year, but if for a shorter time than one (1) year he shall serve for the full time of the unexpired term and no special election shall be called by the Governor but his successor shall be elected at the regular election.

BET Interview With Sen. Trent Lott has the transcript of the Lott interview. I keep hoping that BET will post the video.

December 16, 2002

Trent Lott

I hope you watched Trent Lott on BET tonight. Watching him squirm and lie like a rug is far better than just reading the transcript. (I will have links to both when I find them.)

I wonder what his friends in the racist, segregationist, and Council of Conservative Citizens community are thinking about his performance. The more worldly-wise will be saying, "Ole Trent said what he had to say to keep them liberals and race-mixers from hangin' him out to dry. But we know how he feels."

Damn. Lott even came out for making the "Voting Rights Act" effective in the whole country. He must have meant Section 5, since that's the only part effective in only part of the country. But taking Trent up on this offer would surely mean the end of Section 5. He must know that the Supreme Court only approved the extraordinary provisions of Section 5 exactly because they were narrowly tailored to fit the discriminatory past of certain places. Don't even congratulate Lott for suggesting this.

South Dakota vote buying charges

The Republicans have charging that Tim Johnson did not really win reelection to the Senate because he bought votes. The AG of South Dakota (a Republican) has been investigating the claims. The Republicans gave him 50 affidavits to support their claim -- three were from people who alleged they were paid. Of the three, two have now been determined to be completely false. Here are two stories from the Argus Leader and the Aberdeen News. Best quote from the AG: "I think the National Review was shoddy, irresponsible, sensational garbage. The descriptions were so inaccurate."

Maryland "walking around money"

A Prince George's County grand jury has indicted the head of an employment agency for hiring homeless people to work for the Republican ticket on election day. Maryland law forbids so-called "walking around" money. See the story on

December 15, 2002


Today's New York Times Magazine has 97 small articles on the Year in Ideas. Take a look at the
Preconcession essay. It concerns an issue discussed by me (here): the tendency of politicians to pull out of elections they are going to lose. The Times, with a far larger research staff and archive than I have, has a few more examples.

December 14, 2002

Mississippi redistricting part 4

For the Democrats to win this case, they must overcome several hurdles:

First, the Republicans claim that the Democrats filed their notice of appeal too late. I can't figure out this defense. The jurisdictional statement was filed on 28 March, long before the final judgment of the district court. The brief that would have contained this argument is not on Findlaw.

Second, the Democrats must overcome the problem that the State of Mississippi did not appeal the decision of the district court. The Republicans argue that this means that the State has no interest in having the federal court plan replaced by the chancery court plan. I could this as a low risk to the Democrats.

Third, the Democrats have to show that the chancery court plan is in effect; that is, that the Attorney General improperly delayed his objection. This is a really convoluted part of the record in this case. Miss. submitted two changes: the Miss. Sup. Ct. decision holding that the chancery court had the power to hear the case, and the final ruling of the chancery court (the plan). The DOJ sent a letter that said something like, "We have no objection to the plan, but we want this additional information about the procedure used." These questions were things like how many blacks lived in each chancery court district, whether blacks had effective political power in electing chancery judges, etc. Miss. submitted the additional information. At the end of the second 60-day period, the Attorney General said that he would not object to or preclear the Miss. plan because the plan was not in effect (by this point, the federal court had used the delay in preclearance as its excuse to enter a final order). J. Gerald Hebert has written a great amicus brief (also not on Findlaw) for the NAACP, the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, and the Congressional Black Caucus pointing out how the DOJ has never before asked for more information about the court that adopted a plan. Even in the North Carolina redistricting case, the DOJ asked no questions about the state court that adopted the plan. Hebert points out that the N.C. was a Republican-leaning plan. I think the Democrats have a slight edge on this issue.

Fourth, the court has to find that the constitutional provision providing that the "legislature" has the right to establish the method of electing members of Congress, subject to Congressional power to make a general rule, means that state courts have no power to hear congressional redistricting cases unless the legislature has established a specific review procedure. Here, I am counting on the fact that Justice O' Connor (usually the swing vote in redistricting and voting rights cases) served as a state judge and may be offended by the notion that state courts of general jurisdiction don't have jurisdiction over redistricting cases. A ruling against the Democrats on this issue would throw into doubt a number of congressional plans adopted by state courts within the last 2 years. I predict that O'Connor would rather see the case decided on one of the other issues against the Democrats than have them lose on this point.

Overall, I think the Democrats have about a 55% chance of winning.

December 13, 2002

FEC audit of 2002 presidential campaigns

On Thursday, the FEC considered the audits of many 2000 presidential campaigns. The FEC approved the Buchanan's campaign giving bonuses to several staff members based on a pre-election memo from Buchanan rather than a formal contract with the employees. See FEC Approves Buchanan's Campaign Bonuses (

The Commission also modified and approved the audits of the Bush and Gore campaigns. The nitpicking details are here.

Why do people contribute to campaigns?

The AP has a story today listing the Reasons Donors Give. Briefly they are habit, friendship, expecting something in return, access, issues, fear of the opponent, and CYA. For more details, read the story. Here is another link to a shorter version of the story.

December 12, 2002

Mississippi redistricting part 3

Here is the story from Roll Call on the argument in the Supreme Court.

December 11, 2002

Colorado recount

The recount in Colorado CD 7 has finally been completed. And the winner is the same guy who has been leading all along. See the Denver Post story.

Mississippi redistricting part 2

Yesterday I noted that DOJ asked for more information to support Miss.'s submission under Section 5 of the Voting Rights Act. I had forgotten that Miss. was submitted not just the result but also the process. That it, is submitted the Miss. Supreme Court decision holding that the chancery court had jurisdiction to hear the case, and it submitted the plan adopted by the chancery court. DOJ said the two issues were interrelated, so it could not preclear the result without additional information on the process.

After the federal court's final judgment both the Republicans and the Democrats appealed, but the State officials did not. The Republicans appealed on the issue of whether the federal court should have ordered at-large elections. The Democrats appealed on the theory that the federal court should have deferred to the plan of the chancery court and that the chancery court plan became effective when DOJ did not object within 60 days. The Republicans have also raised the issue that the Democrats did not file a timely appeal.

This case is a mess. There are several different issues the Supreme Court could rule on. And I'm going to take a day or two to come up with my prediction and explanation.

FEC audits of the 2000 presidential campaign

The FEC will consider tomorrow the final audit reports of several presidential campaigns. To see the audit reports, click here. Several minor party campaigns and losing major party candidates are also on the same agenda. The AP story summarizing the major recommendations is
here. The big news is that the Bush campaign is being asked to repay about twice as much as the Gore campaign.

December 10, 2002

Mississippi redistricting

The AP reports on today's argument in the Mississippi redistricting case. It has been a while since I read the decisions below (there were four, I think), but let me see if I can summarize things.

Miss. was losing one of its 5 congressional seats. The Legislature did not pass a congressional redistricting plan. Basically the choice was over which congressman got the ax. Technically, of course, there is no residency requirement for members of Congress as to where they live within the state, but various plans would make it easier for a Democrat or a Republican to win. The Republicans filed suit in federal court -- just as you would expect of a party that preaches the virtues of state control (and the avoidance of all those problems America would have avoided if only Strom Thurmond had been elected in 1948) and has appointed most of the federal judges in Miss. The Democrats filed suit in state court -- just as you would expect of a bunch of scalawagging, federalizing, can't-park-their-bikes-straight liberals and has Democrats on the court where they filed suit.

The federal court is required under a 1990's case to defer to the state court proceedings if the state court is on track to issue a decision in sufficient time to allow a new plan to be used at the next election. So the state chancery judge (another aside: Miss. still has separate law and chancery judges) proceeded to set a schedule for a trial in January 2002. Then the federal court ruled that it would start its trial in late December if the chancery court had not issued a decree by then. So the chancery judge moved her trial date about a month earlier.

Given the tight schedules, of course, all the lawyers cooperated to move the case to trial. Oops, wrong script. The Republicans took an emergency appeal to the State Supreme Court to argue that the chancery court did not have the power to hear the case. The Miss. Supreme Court decided the chancery court did have jurisdiction to hear and decide the case.

So the chancery judge hears all the relevant and irrelevant evidence produced by all parties and adopts a plan favored by the black/Democratic plaintiffs -- a plan that would put more Democrats into the district that would have both Democratic and Republican incumbents (one of each).

Under the Voting Rights Act, nine states and parts of seven others must submit their new voting laws to the Justice Department or a special 3-judge federal court in Washington D.C. for "preclearance" before the law can become effective. The burden is on the state to demonstrate that the new law will not have the effect of decreasing the ability of blacks (or other racial/ethnic minorities) to register, vote, or elect candidates of their choice. The DOJ has 60 days to object to the new law or it becomes effective, although it can ask once for more information and start the 60-day clock again. [Remember this point. It will be on the test.]

Miss.'s AG made a submission of the chancery court plan within a week or two (as I remember it) to the Department of Justice. Since the plan had not yet been precleared by the federal court's deadline, the court said there was not yet a plan in effect, so it would start its trial. It did and adopted its own plan -- one that put more Republicans into the district with the paired congressmen. (I say "more Republicans." I mean "more people who have shown a propensity to vote for Republican candidates.")

After the federal trial and before the federal court decision, the US Attorney General asked for more information about the effect of the plan -- not its effect on blacks but on the power of the chancery court to order a plan at all. The MIss. AG resubmitted after answering the US DOJ's questions. The DOJ never issued a final preclearance letter or objection letter. So the federal court decided that there had not been preclearance and its plan would be the one used for the 2002 election. And, lo it was so.

Stay tuned for tomorrow's installment in which the Ghost of Decisions Future 'splains it all.

December 9, 2002

Maryland "walking around money"

"Walking around money" is one those wonderful phrases to come out of politics. It refers to money (usually cash) given to people who "walk around" and help get out the vote for a candidate or party. There have been charges that one team in the Maryland governor's race paid people to get out the vote. This is apparently forbidden in Maryland.

Let's see the conventional wisdom in political scandals is that the coverup is what really does you in -- more than the original violation. Someone in the Ehrlich-Steele campaign (the Republicans) decided to avoid that problem and filed a campaign finance report showing a payment of $52,000 to an employment agency in the District of Columbia for election day workers. The Baltimore Sun has a delightful article, full of the usual prevarications and obsfucations of the politicos caught with their hands in the cookie jar.


The Serbs have a provision in their election law that requires a majority of the registered voters to vote for the election to be valid. For the second time in this year's effort to elect a president, less than 50% of the Serbs have shown up to vote. Or at least, that's what the electoral commission says. The candidate who got the most votes, Vojislav Kostunica says he will go to court to demonstrate that the electoral lists were faulty and that the won. Dead people are often accused of voting in the US. Kostunica says the dead are on the rolls in Serbia, and they did not vote.

Just when election lawyers in the U.S. thought there was nothing to do but wait for the McConnell v FEC decision, there's work! See - Court move after Serb poll failure - Dec. 9, 2002.

Commentary on the BCRA case

In today's Washington Post, David Broder has a thoughtful column on the competing rights in the BCRA and the suit pending against it. See Defining The Limits Of Political Advocacy.

The Newhouse News Service is distributing a piece by John Farmer of the Newark Star-Ledger expressing some incredulity over the distinction made by some lawyers between
"corruption" and the "appearance of corruption."

McConnell v FEC

Here is the Roll Call story on the oral argument in the suit testing the constitutionality of the Bipartisan Campaign Reform Act.

December 7, 2002

Washington State recount

The Republicans are demanded a full recount of all absentee ballots in Snohomish County, Washington, after realizing that the machines were not counting ballots marked with a ball point pen. See the articles in The Olympian. Voters are instructed to use a lead pencil to mark the ballots (it's the carbon in the marking that apparently makes it visible to the machine). In similar situations in other states (like Alabama) where the Democrats have demanded a recount because of a large number of undervotes, the Republicans have made statements like, "If voters are too dumb to follow the instructions, they deserve to have their votes not counted." Ah, it seems the attitude changes depending on whose ballot boxed is gored.

Christian Coalition voter guides

The Birmingham Post-Herald has a column today by Rev. James L. Evans, pastor of the Crosscreek Baptist Church in Pelham (a suburb of Birmingham). Evans argues that the Christian Coalition of Alabama is claiming that it is a non-partisan organization but publishes voter guides with the purpose of electing certain candidates. He quotes from a post-election analysis of the CCA asserting "Bob Riley [the Republican candidate] would not have received majority vote [for Governor of Alabama] if it were not for the impact of the Christian Coalition and its Voter Guides." [This link won't last long because of the peculiar non-archiving policy of the Post-Herald.]

That could merely be post-election puffery, but the CCA website shows that it intended to have the pro-Riley impact. A memo on the website dated 25 October 2002 states, "The difference between a low turnout of Evangelical Christians and a high turnout of Evangelical Christians will probably make the difference in electing Alabama’s next Governor. It is obvious that the ability of the Voter Guides to turn out evangelicals to vote informatively will make a defining difference in this election." (emphasis in original)

Ernie the Attorney

Ernie the Attorney is a good blog that I read regularly. The fact that he mentioned me in his blog recently has nothing to do with this post. Pure coincidence.

December 6, 2002

Reports on the major 2001 elections

The Century Foundation has published 4 reports dealing with the election administration in Virginia, New Jersey, New York City, and Los Angeles. The reports can be viewed at
this link.

New FEC commissioner and regulations

The Washington Post reports on Sen. McCain's frustration with the White House's delays in appointing Ellen Weintraub to the FEC. See the story atDelay on FEC Pick Irks McCain ( the story also includes some comments on the FEC's new coordination regulations. I will try to write on this soon.

December 5, 2002

Akron's Campaign finance law delayed again

A federal judge has once again blocked enforcement of a strict campaign finance law adopted by the voters of Akron four years ago, the Beacon Journal reports. The law limits contributions to $100 from individuals to council candidates and $300 to at-large council and mayoral candidates. The loser in the 6th Circuit has decided to appeal the 6th Circuit decision to the US Supreme Court. the case is Frank v. City of Akron. The case was decided on 22 May and rehearing en banc denied on 9 September.

Mattel fined over campaign donations

Reuters via the site reports that Mattel has been fined nearly a quarter million dollars and two Mattel executives about 1/3 million dollars for the executives scheme to make campaign contributions and have Mattel reimburse them. The attorney for one of the executives said, "He wanted to become more involved in the community and thought this was a reasonable way to do so."

Campaign finance case

The New York Times coverage of the first day of the trial.

The AP story on the second day of trial and the new regulations adopted by the FEC is on the Washington Post site.

December 4, 2002

Campaign finance suit

NPR's Morning Edition had a story today about the campaign finance suit, but mainly covered the reasons for the law and its probable impact on issue ads and corporations. Listen to the story here.

Campaign finance case arguments

The Washington Post and the AP via the New York Times have articles covering the first day's argument in McConnell v FEC.

Maryland study on touch screen machines

The University of Maryland has released a study on the touch screen voting machines used in 4 counties in Maryland this years. The study is at . Its major findings:
• Seven percent of voters felt that the touch screen voting machine was not easy to use, compared to 93 percent who felt it was easy to use or held a neutral opinion.
• Nine percent of voters did not trust the touch screen voting machine, compared to with 91 percent who did. Only 70 percent trusted the mechanical lever or punchcard system they previously used.
• Three percent of voters reported encountering technical problems with the new machines.
• Nine percent of the voters asked for and 17 percent received assistance using the new machine.
• More than one-quarter of the voters who use computers once a month or less
received assistance using the voting machine.
• One-third of voters who have not attended college received assistance using the voting machine.
• Voters in Prince George’s County found the election judges to be more helpful than did voters in Montgomery County.

The finding about the higher rate of requests for help among those who do not use computers frequently is particularly interesting. This supports the decision most Alabama counties have made to use optical scan machines. Marking a vote on a piece of paper is something closer to most folks' usual life than using a touch screen.

December 3, 2002

New and interesting blog

Robert Ambrogi, a lawyer and author, has started the LawSites blog to discuss "new and intriguing Web sites for the legal profession." In his post for 26 November, he mentioned this site . Rampant backscratching aside, this looks like a good site and I have bookmarked it.

Election contests in Georgia

Here are three stories about on-going controversies in the recent Georgia elections.

The Augusta Chronicle reports on an election in which too many people were allowed to vote for a county commissioner in a split precinct (and the number of extra voters was more than the margin of victory). The county called a new election in the one precinct with the problem. The winning candidate wants an entirely new election, however.

The Walker County Messenger has a similar story, except this time the loser contends that too few people could vote for him in a split precinct.

The Columbus Ledger-Enquirer reports on a contest based on the winning candidate not living in the district. While his house is not in the district, most of his property is and he ran in the district where he was registered.

San Jose, CA, levies fines for campaign violation

The San Jose Mercury News has a report about a municipal candidate who lost the runoff (he was leading in the first round) after the municipal ethics board found that one of his campaign workers had illegally helped a local businessman run an "independent ad." The board has now fined the businessman, the campaign worker, and the campaign. This article creates the impression that the initial finding of violation may have been the factor that lost the race for Mr. Voss. The Silicon Valley/San Jose Business Journal also has a story.

Campaign finance in Canada

The National Post reports that Prime Minister Cretien has decided not to push the idea of entirely banning corporate and union contributions to campaigns, but rather cap the amount of $10,000 (CDN).

Campaign finance case

The New York Times has a preview of the McConnell v FEC case that will be argued Wednesday and Thursday of this week. The Washington Post has dueling op-ed pieces by George Will and E.J. Dionne, Jr..

Will's column makes a good point about the motivation of the sponsors of the BCRA, namely that they were concerned about suppressing a particular type of speech -- "issue ads" by "outside interest groups." The only purpose the Supreme Court has been using to sustain campaign regulations is the prevention of corruption or the appearance of corruption. In effect, Will is arguing that the court should strike down the BCRA because the sponsors were trying to level the playing field (an insufficient purpose) without deciding whether the BCRA also prevents the appearance of corruption (a sufficient purpose). I think Will loses this one.

Dionne's column explains that the oft-repeated statement that certain ads (mentioning candidates, shortly before an election) will be "illegal" is just hooey. The ad can be published shortly before an election as long as it is financed solely with funds raised and reported in accordance with the FECA. In short, Dionne argues, the new law is simply closing a loophole that allowed corporations and unions to finance campaign activity as an "independent expenditure."

December 2, 2002

Canada: campaign finance

In Canada, companies and unions can and do contribute to political parties. The Prime Minister is considering an amendment to the law to prohibit such contributions. The proposal would also include tax credits for individual contributions and public funding of parties. See the story in The Globe and Mail.

Australia: truth in campaign promises

Now this is an interesting idea. In Australia, the two major parties have hired outside auditors to evaluate their proposals and assess whether there will be enough money to pay for their campaign promises. The result is reported in this Australian Broadcasting Corp. story, Labor and Libs can meet campaign promises: assessors.

Indiana recounts

Control of the Indiana lower house hinges on a recount of House seat. If the Democrats preserve their lead in that seat (presently at 36 votes), they will have a 51-49 margin in the House. If the Republicans win, there will be a tie in the number of seats, but the Republicans will control the chamber under a 1995 law that gives control in such situations to the party that won either the governorship or the secretary of state in the last election. See the story in the Henderson Gleaner. [Check out the links to police scanner audio and the warrant list in the left margin.]

Mobile legislative contest

The winner of a legislative race in Mobile County is being challenged on the grounds that he does not live in the district where he ran. The judge has properly refused to hear the contest -- holding that the Legislature is the proper forum. Mr. Tanner has been challenged on this issue twice before -- both times before the Democratic Party. I wonder why the Republicans did not bring the case to court before the election. See the story in the Mobile Register.

Jefferson county commission

The Birmingham News reports on the case against the Jefferson county commission. The plaintiffs' theory is that the commission packed blacks into two districts to reduce their clout in the other three. The case goes to trial on 16 December.

Campaign Finance Case

Roll Call has a more detailed story on the oral arguments this week. "You can't tell the players without a program."

Campaign Finance case

The Washington Post has a background article on the oral arguments coming up this week. Go here.

December 1, 2002

Maine election

Paul Weyrich has an article/editorial with the even handed title, Conservatives: Blow the Whistle on the Robbery Taking Place In Maine! about the swing seat in the Maine Senate. We will have to see if Weyrich's rhetoric is the prelude to a major action by the Republicans nationally to scream "robbery."