Results tagged “Election Law”

December 12, 2013

Levitt2.jpgBy Associate Professor Justin Levitt

This op-ed originally appeared on Pacific Standard.

Precisely 13 years ago, five Supreme Court justices cast the final and most important vote of the 2000 election, ending a Florida recount and effectively installing George W. Bush as the 43rd President of the United States.

Today, Bush v. Gore hits adolescence. We should be paying far more attention to this troubled teen.

The chaos of the winter of 2000 has slipped from the national consciousness. My students have no idea what a "hanging chad" is, or that such a thing was ever meaningful. More recent constitutional crises have left the combat in Tallahassee stale and distant. Much of America has, it seems, finally taken Justice Scalia's frequently quoted advice on the election: "Get over it."

But ignoring the Bush v. Gore bar mitzvah would be a grave mistake. In some ways, the need to remember--and to let that memory spur us to action--is greater now than ever before.

Read the complete piece.

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October 30, 2013


By Associate Professor Justin Levitt

This op-ed originally appeared in Constitution Daily.

Voter ID laws are back in the news. Curiously, the most recent action concerns one of the oldest cases.

Judge Richard Posner wrote the 2007 appellate opinion upholding Indiana's strict photo ID law -- the first legal one in the country -- against a challenge. Justice John Paul Stevens wrote the 2008 opinion for the Supreme Court upholding that upholding. Both have recently publicly mused about the merits of arguments by the judges that disagreed. That sort of reflective appreciation for the opposing view is sufficiently unusual that it has provoked a flood of commentary.

And that flood of commentary has largely lost sight of two very important distinctions. First,

ID laws are not all the same.

Every state makes sure, when people come to the polls, that they are who they say they are. It's the details of how they do this that matter. Some states compare signatures. Many see whether they can match up Social Security digits, or ask for a document like a utility bill or paycheck, off a long list. Some have a shorter list of approved documents. Some ask for a government-issued photo ID card from those who have one, and demand a special affidavit from those who do not.

And some now require specific photo ID cards from all but the legally indigent, preventing eligible voters who do not have photo ID on Election Day from casting a valid ballot at the polls. (Most such states have more lax documentary requirements for voting absentee.) Even within this category, there is variety: some accept student IDs, for example, and some do not.

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October 7, 2013

levinson.jpgBy Associate Clinical Professor Jessica Levinson

This piece appears in Pacific Standard.

Shaun McCutcheon wants to make political donations to federal candidates. Allow me to clarify; McCutcheon wants to make a LOT of political donations to federal candidates. The Republican National Committee, among others, wants him to be able to do so. So what's the problem?

Currently, McCutcheon can give $2,600 per election directly to a federal candidate, a total of $48,600 per election to all federal candidates, and $74,600 per election to federal political party committees and political action committees, or PACs, that give money to federal candidates. Put another away, McCutcheon (and other individuals) are subject to a $123,200 per election aggregate contribution limit with respect to candidates, political parties, and PACs. McCutcheon, a general contractor living in Alabama, would like to change that. The result is the latest and greatest campaign finance question to hit the high court since Citizens United.

In the early 1970s, in the wake of the Watergate scandals that lead to the resignation of President Nixon, Congress implemented the nation's first comprehensive campaign finance law. The law limited how much could be given to and spent by candidates, how much could be spent by independent groups and organizations, required that certain donations and expenditures be disclosed to the public, and created a system of public campaign financing for presidential candidates.

In 1976, in a decision that remains the bedrock of campaign finance law, Buckley v. Valeo, the U.S. Supreme Court essentially accepted half of Congress' attempt to regulate money in politics. The court upheld limits on contributions, disclosure provisions and the public financing program. However, the court struck down limits on spending by candidates and independent organizations. In the court's patchwork opinion it upheld the limits on the total amount of contributions that donors could give to candidates, political party, and other political committees, finding that those limits were a way to prevent the evasion of the direct limits on contributions from individuals to candidates. The court's analysis is less than satisfying on this point. In the almost 40 years since that decision much has changed regarding campaign finance laws. Money now flows relatively freely, and in some cases in undisclosed amounts, through our political system. But the aggregate limits on contributions have stood.

Now the Supreme Court appears poised to change that and the only question for McCutcheon is how big his likely win will be. In order to determine the size and scope of McCutcheon's potential victory, we need to look at the current state of the law.

Back in 1976 the court applied one test to determine if contribution limits were constitutional, and another, more stringent, test to determine if expenditure limits were constitutional. First off, justices found that limits on the ability to give political donations present only a marginal restriction on First Amendment rights. The test to determine whether those limits are constitutional requires two steps. First, the restriction must serve a sufficient governmental interest, such as preventing corruption or the appearance of corruption, in order to justify the burden on speech and associational rightsSecond, the law must be well tailored to serve that goal (specifically, according to the court the limits must be "closely drawn.")

But what about expenditure limits? The court also held that when it comes to limits on spending, the applicable test is more stringent because those limits present a severe, rather than merely a marginal, restriction on First Amendment rights. So in the case of spending limits the government must show that its interest in implementing the restriction is compelling (as opposed to sufficiently important) and that the restriction is narrowly tailored to serve that interest (as opposed to being closely drawn to serve that purpose).

These court-created tests, and the less-than-clear terms like "closely drawn" and "narrowly tailored," may sound like overly formal hair splitting. And it some ways they are. But whether and how we can limit the influence of money in our electoral and political systems hangs on that hair splitting. The court has long held that contribution limits can be upheld because they help to reduce corruption or the appearance of corruption. But what exactly is the court's definition of corruption? Well, it has varied with almost every new Supreme Court decision in this area of the law, including the now-famous 2010 Citizens United decision. One of the main reasons that McCutcheon's argument has legs is that ever since Citizens United the court has defined corruption very narrowly as quid pro quo, which is Latin for "this for that." A broader definition of corruption could include concepts like undue influence and preferential access. The narrower the definition of corruption, the less likely a court is to find that a restriction serves to prevent it. McCutcheon argues, in a nutshell, that the government lacks a sufficient interest when it comes to aggregate contribution limits because in a world of narrowly defined corruption, it's not there. And if that's the case, McCutcheon is arguing that the court was wrong in Buckley when it upheld the limit on aggregate contribution limits.

McCutcheon also argues that the court should apply the second test, the one that is more difficult to satisfy, to the aggregate contribution limits.

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August 16, 2013

Thumbnail image for Levitt2.jpgBy Associate Professor Justin Levitt

The following essay is part of a SCOTUSBlog online symposium on McCutcheon v. Federal Election Commission.

Photographs purport to show objective facts. But whether they illuminate or distort our understanding of the world depends entirely on choices -- of lens, of frame -- that the photographer has made. Much of constitutional law is the same: the choice of lens and frame drives the Supreme Court's understanding of our rights and obligations. Without recognizing this truth, it is virtually impossible to understand the Court's campaign finance jurisprudence.

McCutcheon v. Federal Election Commission offers a dizzying fight over lens and frame. The briefs presented to the Court zoom from micro to macro and back, often within sentences of the same brief. The basic structure of the reason for the fight, at least, is clear. McCutcheon is about aggregate caps on contributions to federal candidates, party committees, and PACs that donate to candidates and parties. There are limits on what I can give to any individual federal candidate. And then there are limits on what I can give to all federal candidates, total. The same is true for parties and PACs. This case is about the totals.

From the flattest perspective, this case has already been decided. This case challenges aggregate limits. Buckley v. Valeo (1976), the progenitor of the modern campaign finance regime, upheld a system of aggregate limits. Easy. How to view aggregate limits

Much too easy. Buckley's 294 pages cover the entirety of the landmark Federal Election Campaign Act. It gave aggregate limits six sentences. Two of the six were devoted to describing the limits. One noted that the issue had "not been separately addressed at length by the parties." Three more disposed of the substance. This Court is unlikely to believe that its focus is confined by those three sentences. (Similarly, granting cert. to revisit these three sentences provides little reason to believe that the Court is interested in revisiting Buckley entirely.)

Another shallow lens simply looks to conventional wisdom, and the caricature of a relentlessly deregulatory Court. Citizens United looms, larger than life. Like Citizens United, the legislation challenged in McCutcheon also constrains campaign-related cash. And like Citizens United, the challenge has been brought in part by James Bopp, who has a remarkable record before the Court. Easy.

How to view aggregate limits

And also, too easy. Most of the Court's recent deregulatory decisions have involved expenditures: money that I spend to create and distribute a message, like a movie about Hillary Clinton. The Court has been far less eager to strike down restrictions on contributions: money that I give to a candidate to spend on her campaign as he or she pleases.

This distinction between expenditures and contributions creates an odd policy environment. But through Buckley's rights-based frame, it has its own - quite stable - logic.

Buckley, in essence, decided that my interest in speaking vigorously about politics is at the core of the First Amendment's protections. And no government interest presented in the case was sufficiently strong to override that right. In contrast, any speech interest in giving money to a candidate is derivative; any associative interest is easily promoted in other ways. And there is a real danger that politicians will do legislative favors for me if I agree to give them suitcases of cash.

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August 5, 2013

Thumbnail image for Levitt2.jpgBy Associate Professor Justin Levitt

This commentary was cross-posted to the Election Law Blog.

In the world of campaign finance, the constitutional distinction between contributions and expenditures has been one of the primary, comparatively stable, fault lines.  This has been true since at least since Buckley v. Valeo, the progenitor (and for some, original sin) of the modern campaign finance regime.  The Court has relatively consistently reviewed limits on most expenditures with greater scrutiny than limits on contributions. 

In the Supreme Court’s latest foray into campaign finance, the McCutcheon v. FEC case to be argued this fall, plaintiffs are arguing that the regulations in question blur the categories.  Those regulations impose aggregate limits on donations to federal candidates, parties, and PACs that give to candidates.  I may give no more than $5,200 to any individual federal candidate over a two-year campaign cycle.  In that same period, I may give no more than $48,600 to federal candidates, total.  McCutcheon is about the latter, total, limits.

The McCutcheon plaintiffs have argued that these aggregate limits are something of a hybrid, and ultimately more like expenditures than contributions.  Bob Bauer, here, also finds the distinction blurry, noting that the rules restrict “the total amount that a contributor can spend on contributions.”

I don’t get it.  There are certainly circumstances where the line between contributions and expenditures is fuzzy (and circumstances where the line has been confused even when it is clear).  But McCutcheon presents such a scenario only if we forget entirely why the constitutional distinction arose.

The paradigmatic expenditure is the sum that I spend to produce a political communication in my own voice.  If I want to make and place a 30-second TV spot supporting candidate John Smith, the money that I spend is an expenditure.  My ability to communicate my own political message (and to persuade others to adopt the same position) is at the core of the values that the First Amendment protects.  Thus, limits on that ability receive the most heightened scrutiny.

The paradigmatic contribution is the sum that I donate to a candidate, to spend on campaigning as she pleases.  She may use that money to create speech I agree with.  She may use that money to hire staff or buy chairs.  She may give that money away to another candidate, whom I don’t support at all.  If the recipient of my donation produces speech at all, it is derivative: I give to the candidate to further her speech (some of which I probably agree with).  And the gift is one way to demonstrate my wish to be associated with the candidate, but there are many, many ways to demonstrate that association effectively that do not involve giving money to the candidate herself.  That is, there are First Amendment values involved, but they are more attenuated.  Thus, limits on these contributions receive less rigorous scrutiny.

Note that the reason for different levels of scrutiny relies on the different values expressed, rather than the difference between giving money and spending money.  With the latter, it’s too easy to get lost.  Someone may give money to a video producer to spend on making a video (which is really just giving money to actors and camera operators and film editors and the like).  Someone may give money to a political group to spend on donations to candidates, or to spend on making videos themselves.  As Bauer points out, a candidate may give to his own campaign to spend on getting elected.  In any world with more than two people, there will be both giving and spending behind any transaction.

But that’s not what the constitutional distinction between expenditures and contributions is based on.  Instead, it’s about the First Amendment values expressed.  If I (alone or with others) spend money to advance my message, that’s an expenditure.  If I give money to someone else to advance their purposes, message-related or otherwise, that’s a contribution.

Giving to groups that are only producing ads (an “expenditure-only PAC”) shows that the distinction can become tricky.  The less I know what the PAC is actually doing, the more it looks like a contribution.  The more engaged I am in the message of the PAC, the more my gift to them looks like an expenditure -- my action, taken in connection with others, to express our collective message.  In the SpeechNow case, the D.C. Circuit found that it did not need to decide whether such gifts are contributions or expenditures for purposes of constitutional scrutiny; even contribution limits must be justified by some valid government interest, and the court found none.  The holding saved resolution of an admittedly tricky question.

Coordinated expenditures can also be tricky.  Formally, the expenditure is my speech.  But it would also be possible for me to serve as the empty funding vessel for a message of a candidate’s choosing, which is not so different from giving the candidate the money directly.  And it may be that the tricky distinctions are unnecessary to resolve here as well, in the mirror image of SpeechNow: even rigorous scrutiny of limits on coordinated expenditures may reveal valid regulatory interests that justify restrictions less defensible in a truly independent context.

So there are, to be sure, tricky cases in the land between contributions and expenditures.  McCutcheon, however, is not one of them.  Aggregate limits on “the total amount that a contributor can spend on contributions” are still limits on my ability to give money that lands in the hands of candidates or parties, to do with as they please.  I have no control over whether the money is used to produce a message I agree with, a message I disagree with, or a donation to a candidate that I firmly wish to be defeated.  The First Amendment values of my gifts are attenuated.  (And that’s true whether or not the government has a sufficiently valid regulatory interest.)

If contributions and expenditures are defined by giving and spending, the aggregate limits in McCutcheon might seem tricky.  But if we return to the reasons behind the constitutional distinction itself, at least that element of McCutcheon looks refreshingly straightforward.

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May 9, 2013

Jessica Levinson Summary Judgments Blog.jpgBy Associate Clinical Professor Jessica Levinson

This post originally appeared on KCET's website.

Is candidate centered campaign fundraising a thing of the past?

Greetings, and welcome to the Super PAC era. Thanks in part to the Supreme Court's 2010 decision in Citizens United, we now have new entities called "Super PACs," which are organizations that can raise and spend unlimited political funds.

Contributions given directly to candidates are unlimited, but again, contributions to outside groups such as Super PACs are not. Therefore, as many predicted, individuals and entities who wish to support candidates but have given up to the legal limit, now have a new outlet for their campaign donations. This pattern, however, is nothing new. Before there were Super PACs big donors gave to political parties or other outside organizations like independent expenditure groups.

Campaign fundraising by candidates is increasingly being marginalized and fundraising by independent groups including Super PACs is coming to the forefront. We are seeing this phenomenon play out real time in the Los Angeles mayoral race where the contribution limit to candidates is $1,300 both in the primary and the runoff elections. While fundraising by candidates is still outpacing fundraising by Super PACs in the mayoral race, at some point in the near future that could change. In this election both candidates have raised approximately $5.7 million and independent groups have raised roughly $4.7 million for Greuel and $1.3 million for Garcetti. That means about one-third of the money raised in the mayor campaign has been raised by outside organizations. Again, the lion's share has gone to groups supporting Greuel.

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February 25, 2013

Thumbnail image for Levitt2.jpgBy Associate Professor Justin Levitt

This op-ed originally appeared on Jurist.

For better or worse, a professor's thoughts are never far from final exams. The best exams, I think, test students' understanding not just of the governing rules, but the legal rationales that drive them. And it's no secret that in devising hypothetical questions for exams, professors often turn to potential scenarios that they've otherwise been mulling: scenarios that present tricky issues forcing the better students to dig beneath the surface. Often, these exam issues are drawn from pending or recent cases.

For better or worse, a professor's thoughts are never far from final exams. The best exams, I think, test students' understanding not just of the governing rules, but the legal rationales that drive them. And it's no secret that in devising hypothetical questions for exams, professors often turn to potential scenarios that they've otherwise been mulling: scenarios that present tricky issues forcing the better students to dig beneath the surface. Often, these exam issues are drawn from pending or recent cases.

And sometimes, the cases -- like the Supreme Court's decision last week to hear McCutcheon v. FEC -- are drawn from the exams.

In May 2011, I asked the following question on my election law exam:

Federal law imposes aggregate limits on individual campaign contributions over a two-year period. Individuals may not contribute more than $46,200 (total) to federal candidates, with no more than $2,500 to any single candidate. (These limits pertain to contributions to federal candidates only, and do not include separate limits on the aggregate amounts that individuals may give to PACs and political parties.)

Clark Tuckerberg is a social media entrepreneur and multi-billionaire. He has "friended" more than 200 members of Congress and more than 30 US Senators on Facebook -- and he would like to demonstrate that, to him, "friending" is a real commitment. He acknowledges that he may not give more than $2,500 to any single candidate. However, he would like to give $2,500 to each of the candidates that he has "friended," which would put him well over the aggregate limit.

Tuckerberg files suit, challenging the aggregate $46,200 limit on contributions to federal candidates, under the First Amendment. He does not challenge either the $2,500 limit on contributions to any individual candidate or any limits on contributions to parties or PACs.

You are clerking for the judge assigned to hear the case.

The judge acknowledges that the Supreme Court addressed the issue of aggregate contribution limits in six short sentences of Buckley v. Valeo. Yet with a twinkle in her eye, she suggests that the Court's recent stance toward campaign finance precedent suggests that it may be unwise to rely solely on six cursory sentences of a thirty-year-old opinion. She cautions that she has no view on whether the limit is constitutional or not. But she would like you to analyze the issue as an original matter, without relying on the cursory treatment of the issue in Buckley.

Evaluate whether Tuckerberg's challenge to the aggregate $46,200 contribution limit is likely to succeed, and why. On August 31, 2012, real-live Virginia James stepped into the shoes of my entirely fictional Clark Tuckerberg. In her complaint, captioned as James v. FEC, she challenged the same aggregate contribution limit that Tuckerberg resented.

On Halloween last year, the US District Court for the District of Columbia rejected James' challenge, in an opinion with far more meat than the limited treatment that the issue received in Buckley. The court's opinion turned largely on the role of the aggregate limit in stemming corruption arising out of candidates' transfers to each other. That same issue was at the heart of a companion case, McCutcheon v. FEC, challenging the aggregate limit on giving not only to candidates, but also to political action committees (PACs) and parties; McCutcheon was filed two months before James and was decided -- upholding the limit -- at the end of September.

Under an unusual procedure largely reserved at this point for election-related cases, McCutcheon was heard by a three-judge federal trial court, the decisions of which are appealed directly to the Supreme Court. This appeal is an appeal by right, not a request for certiorari: the decision can be summarily affirmed or summarily reversed, or the court may hear argument and write more extensively. But, much like my students, the Court cannot chose to avoid the issue entirely.

On Tuesday, the Court agreed to hear more from the parties on McCutcheon, which likely means a more extensive decision. Professor Rick Hasen rightly notes that this is a significant step -- and the blogosphere is on fire with predictable predictions that the Court is poised to upend campaign finance law once again. But I think the real significance may be different than the primary chatter indicates. And I think much will depend on the other shoe, yet to drop: what happens to James.

Hasen, and plenty of others, have correctly noted that in reviewing McCutcheon, it is possible that the Court will revisit its approach to the constitutionality of contribution limits more generally: a wholesale change to the basic rules of the game. Certainly, the Court has, in the past, taken small cases and turned them into big ones. But not every tremor portends a Vesuvius.

Revising the overall approach to contributions is in no way necessary to deal with the issue in McCutcheon. Currently, the Court looks much more closely at limits on expenditures (which involve direct payments for expression) than at limits on contributions (which involve expression only by proxy). But even though looking at the justification for contribution limits involves reading glasses and not an electron microscope, a review with reading glasses is still meaningful. It is entirely possible for the Court to take a firm look at the contribution limits in McCutcheon without upping the general prescription.

Similarly, Hasen notes that reviewing McCutcheon involves a review of part of the landmark Buckley v. Valeo case. But as I suggested in my exam, the aggregate limits are a part of the case that got little attention from the Court at the time: six sentences of 294 total pages. There are many ways in which the Court could address the constitutionality of the aggregate limits, including the justification for those limits, that leave intact the essential Buckley "settlement": a harder look at limits on expenditures than contributions and ample reasons to limit contributions in order to prevent corruption. Even though the issue in McCutcheon was addressed by the Buckley Court, there is no reason that a finding for the plaintiffs has to amount to an unraveling of Buckley more broadly.

Instead, the real significance of the case may come with a decision whether to hear James at the same time. James is about contributions to candidates, and the potential for one donor to corrupt candidate X by contributing amounts that are individually unsuspicious to 20 other candidates, all of whom give chunks of that cash over to X. McCutcheon concerns candidates as well, but adds the complicating factors of party committees and PACs -- artificial entities that can be formed at will, each of which can receive more money per person, and for whom there may be significantly more reason to act as a conduit. There are far more reasons for Congress to be concerned about contributions to parties and PACs -- and for the Court to credit those concerns -- than for it to regulate Tuckerberg's contributions to his "friends." But it is easier to lose sight of the most significant elements in McCutcheon if James is not also before the Court to focus attention on the distinct roles that PACs and parties play.

The Court has not yet decided what to do with James: whether to hold it, address it summarily or hear it with McCutcheon. Its decision could well signal what aspects of the case have drawn the Court's attention.

It's one exam answer that should be particularly interesting to grade.

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November 5, 2012

Thumbnail image for Levitt2.jpgBy Associate Professor Justin Levitt

In a recent New York Times "Campaign Stops" piece, I mentioned concerns about citizens undermining the integrity of the election by attempting to impose and enforce the "law of their gut" rather than the law on the books.

BloggingBallot.jpgOne prominent example concerns the concept of domicile. Domicile shows up in different ways in the election process, but the most common misunderstanding has to do with where people are eligible to vote. Recent reports reveal that voters have been challenged in several states based on claims that they aren't eligible to vote where they're registered. These challenges often reflect a common gut instinct -- but more seldom reflect the law.

In several states, organizations "empowered" by a national organization called True the Vote have announced research finding registrations subject to challenge based on their addresses. This isn't the first time that people have been challenged based on unwarranted assumptions about their addresses -- voter caging schemes, for example, are a version of this.

The True the Vote approach apparently starts by combing large databases, flagging (for example) addresses where more than 6 people are registered. Other flags may include people registered at colleges.

One problem with quasi-automated challenges like this is the quality of the data: "vacant" lots are sometimes not actually vacant.

But even if the data are accurate, they don't necessarily show ineligibility. Let's start with the street addresses listing six or more individuals. Most households are smaller than this, yes. But 1.7 million households -- disproportionately African-American and even more disproportionately Hispanic -- have seven members or more. And that doesn't include more than 36 million people living in apartment buildings, with 5 or more units at the same street address, or the 8 million people living in "group quarters" like dorms or military barracks. Some Americans live with their 2.5 children in single-family homes; many Americans don't.

That's just the start of the disconnect. It's possible for more people to be validly registered at a street address than actually live there at any given moment. That is, it may be entirely lawful for seven people to be registered to vote at an address that sleeps four.

If that seems crazy, that's because the standard for voter registration isn't always intuitive. Like most election laws, the legal standard differs from state to state. In some states, you're properly registered to vote wherever you consider "home" at the moment. In other states, you should be registered at the last place you lived that you didn't consider temporary. Other states' rules are different still.

The proper legal standard usually turns on intent, which makes it particularly tricky to assess proper registration with software. Let's say that I move to 123 Main St., intending to settle in at my new address indefinitely. I may leave someday, but there's no date I have in mind, and until then, I've left my old address behind. In many states, 123 Main is now my domicile: where I can legally register to vote.

Now let's say that I leave for some reason. It may be the same day that I move in, without unpacking a single box. I may be called up for military duty, or called away for a business trip, or simply travelling to renaissance festivals across the country. As long as 123 Main St. was a valid place for me to register when I arrived, if I don't establish domicile somewhere else, 123 Main St. would still be the legal place for me to vote.

That is, 123 Main would be my lawful registration address even if I were only present there for a few hours. 123 Main would be lawful whether it was a single-family house, an apartment, a college dorm, or a homeless shelter. It would be lawful even if someone else were now living in my former room at 123 Main -- yielding more voters registered than people physically present. And it would be lawful even if the building had been knocked down while I've been away -- leaving a vacant lot.

States' legal definitions of domicile can lead to situations that may seem unusual to a casual onlooker. It's why college students may be able to claim valid domicile for voting purposes either at their campus address or a prior address, depending on the states in question and the students' intent when they get to school. It's why members of Congress may be legally registered to vote "back home," even when "home" was sold decades ago. It's why it's not a stretch to believe that Mitt Romney was lawfully registered to vote for a year at his son's house, even with multiple other permanent homes in his name.

It's even one of the reasons why there may lawfully be more registered voters in a county than the number of eligible citizens counted there by the Census. Some loudly decry such "over-registered" counties as breeding grounds for fraud. As a gut measure, it has appeal. But -- for example -- military personnel who are overseas on Census Day are registered at their domicile, but not counted there by the Census. The gut measure ignores valid reasons why one list might not match up with the other, including those serving overseas. The law serves us better.

To be sure, people are sometimes listed on voter rolls where they do not belong, often as the aftermath of a real residential move. Portable registration systems that actually follow people when they move, rather than relying on new registrations on the front end and purges on the back end, would go a long way toward solving the problem. At the moment, regular list maintenance, with notice to the voter and safeguards for error, does a moderately good job at cleaning the rolls over time, without unduly jeopardizing the rights of legitimate voters who have quirky residential situations.

By contrast, last-minute challenges founded on data screens, without personal knowledge of a voter's intent, only serve to capture situations that seem unusual -- without any realistic ability to know whether that unusual is also unlawful. In a diverse country, we should all be wary of efforts that sloppily conflate the two.

Justin Levitt is an associate professor of law at Loyola Law School, Los Angeles, where he teaches Law of the Political Process. He maintains the website and blog "All About Redistricting" at

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November 1, 2012

Levitt2.jpgBy Associate Professor Justin Levitt

Every year, late October brings pumpkin pie and horror movies and reports of deceased voters. The reports are, inevitably, spooky, with a hint of the comic macabre. And they are often followed by proposals to slash the voter rolls, with the equivalent of an electoral chainsaw.

BloggingBallot.jpgBut now that the cobwebs have been brushed away in the clearer light of a November morning, most of the specters have vanished. Turns out that the undead hordes are too busy terrorizing your Tivos to be stealing your elections.

Most allegations of dead voters rely on attempts to match large computerized databases of dead people to large computerized voter rolls. And they fall prey to three basic fallacies.

First, bad data. Sometimes people listed as dead are not really dead. Investigative reporters at Scripps-Howard have discovered that the Social Security's Death Master Index, one of the most-used registries in the country, falsely announces the deaths of nearly 1,200 living Americans per month. Think of these legitimate voters as buried alive.

And sometimes, people listed as voting did not really vote. Election records are imperfect. In the press of a busy day at the polls, people sometimes sign the wrong line of a pollbook. And in the press of a busy canvass after the election, officials sometimes hit errant keystrokes, recording a vote that a deceased individual did not actually cast. Think of these legitimate souls resting peacefully, without braving the lines at the polls.

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October 30, 2012

Jessica Levinson Summary Judgments Blog.jpg

By Associate Clinical Professor Jessica Levinson

Californians will soon go to the polls to weigh in on no less than eleven ballot initiatives. These initiatives could change the law on everything from the death penalty to the labeling of food.


I have previously written here about the pitfalls of the initiative process. This mechanism of direct democracy, designed to guard against the power special interests held over our elected officials, is now similarly controlled by special interests. Money is the driving factor behind which proposals qualify for the ballot.

Large sums are spent not only to pay signature gatherers to get proposals placed on the ballot but also to support or oppose those measures once they qualify for the ballot. One need only to open the mailbox or certain websites, or turn on the television or radio, to see the enormous amounts of money being spent to attempt to sway voters on these eleven initiatives.

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October 22, 2012

Waterstone SJ blog Picture.jpgWith election season in full swing and the final presidential debate tonight, I have asked several colleagues to write blog posts on election-related issues within their respective areas of expertise. Through this series, "Blogging the Ballot," we will provide legal commentary that tracks the political issues. We will be posting every few days until the election on a broad range of issues, including election administration, human trafficking, foreign policy and free speech. And depending on what happens Nov. 6, we will continue to post relevant opinions. So please keep checking back as we continue Blogging the Ballot!

--Professor Michael Waterstone, Associate Dean for Research and Academic Centers

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October 22, 2012

Levitt2.jpgBy Associate Professor Justin Levitt

Legal fights over new restrictions on voters are all over the news these days, with fights over "voter ID" rules often front and center. The fight is not over whether voters should show that they are who they say they are -- every state has some method for that. Instead, the current fights are over a set of restrictive rules that newly limit the ways voters may offer that proof. In 2011 or 2012, several states passed laws prohibiting eligible voters from casting valid ballots at the polling place if they do not have particular government-issued photo identification cards; most have been blocked, at least temporarily, by the courts, and will not be in effect for the coming election.


I've been fighting the most restrictive laws since 2005, as unnecessary regulations whose "cure" is worse many times worse than the "disease" of voter fraud they ostensibly confront. Most eligible citizens have the right kind of government-issued photo ID. But reliable statistics show that many of us -- between 1.2% and 16%, depending on the particular numerator and denominator -- don't. And voting isn't just a right for most of us.

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September 17, 2012

Levitt2.jpgBy Associate Professor Justin Levitt

Every four years, the presidential election contest dominates the news, bringing with it not only daily policy and political scuffles, but plentiful skirmishes over the rules for conducting elections and persuading the electorate. Every 20 years, the presidential election roughly coincides with the decennial redistricting process, as political lines are drawn to restructure representation across the country. The year 2012 represents one of those comet-like convergences, where the full infrastructure of democracy is not only buffeted by winds of change but becomes suddenly, fleetingly, salient -- and new and old media alike examine every development in painstaking detail.

In such an environment, just as vulcanologists flock to the latest eruption, election law scholars tend to find the daily developments irresistible. We rationalize the engagement by understanding that we can offer context and texture and a bit of both legal and historical perspective. But when we're most honest with ourselves, perhaps it's just that we want to be where the action is, in a field to which we've devoted our professional lives. Your Loyola election law faculty aren't immune -- both Jessica Levinson and I have attempted to engage the day-to-day in a way that we hope contributes more good than harm.

But perhaps particularly in the swirl of an election season, it's also tremendously useful to be able to step back as well. Which is why I'm grateful for two opportunities this past week to think more deeply about election law scholarship that's not dependent on yesterday's headline.

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July 3, 2012

Jessica Levinson Summary Judgments Blog.jpgBy Associate Clinical Professor Jessica Levinson

Last year, California became the first state to permit campaign contributions via text message, a move that was followed up by the Federal Election Commission in June, setting the stage for text-to-donate in national elections.

But the question is why. The purpose behind new policy is to allow more people to participate in the electoral and political processes. The idea is text message contributions will make it quicker and easier for small dollar contributors to give. In addition, the belief is that it will be the younger members of the electorate, who do not typically give campaign donations, who will disproportionately take advantage of these new rules.

These are real and important goals. Younger members of the electorate do not vote nearly as much as older members. Perhaps if they buy in, both literally and figuratively, to the electoral process they will feel compelled to make their voices heard at the ballot box in greater numbers.


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June 11, 2012

Jessica Levinson Summary Judgments Blog.jpg By Visiting Associate Clinical Professor Jessica Levinson

Last week Californians voted in primary elections for the president, federal and state representatives, judges, and proposed ballot initiatives. Actually, let me rephrase that: Last week a small percentage of eligible voters in California weighed in on various ballot questions. About one-in-four people who could vote, did vote, which may, in fact, be the lowest in recent history for a presidential primary.

Californians, or the few of us who mailed in ballots and went to the polls, were faced with two proposed ballot initiatives. First up, Proposition 28, the successful proposal to tinker with the state's term limit laws. Now, instead of being able to serve 6 years in the state assembly and 8 years in the state senate, for a total of 14 years of service, our state lawmakers can serve for a total of 12 years in either or both houses.

Does that sound like a relatively minor change? Well, it is. It will be hard to determine whether voters approved of Prop 28 because they thought they were shortening the amount of time lawmakers could serve as state representatives, or because they thought they were giving lawmakers more flexibility. In any event, this is not the type of large-scale reform that California needs.


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May 30, 2012

Jessica Levinson Summary Judgments Blog.jpgBy Visiting Associate Clinical Professor Jessica Levinson

This op-ed originally appeared in the May 30, 2012 edition of the Daily Journal.

Much of the backlash around the Supreme Court's much-maligned 2010 decision in Citizens United v. FEC focuses on the battle cry that "corporations are not people." Well, as with all things, corporate personhood is a complex area of the law that boils down to sometimes they are, and sometimes they aren't. The substance of the Citizens United decision essentially comes down to two conclusions, both of which I believe are ill conceived.

First, the thin majority found that speaker-based identity restrictions are impermissible. Put another way, if the government cannot prevent individuals from spending money on independent expenditures, then neither can it prevent corporations from doing so. For a variety of reasons, which I have detailed in a recent law review article, I believe that in the campaign finance arena corporations should not, in fact, be treated as identical to individuals. While corporations are certainly made up of people, they are artificial entities created with numerous state-created benefits.

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April 11, 2012

Jessica Levinson Summary Judgments Blog.jpg

By Associate Visiting Clinical Professor Jessica Levinson

This op-ed originally appeared in the April 4, 2012 edition of the Daily Journal.

We the Corporations?

While the Republican presidential nominee and the ultimate victors of contests throughout the nation may be unknown, one thing is clear: the 2012 election will break campaign fundraising records. This is the first presidential election since the Supreme Court's fateful decision in Citizens United v. FEC. Since that decision, there has been a proliferation of campaign spending, most notably by so-called "Super PAC" organizations. These are independent-expenditure only political committees. Republican-backed Super PACs have already raised $81 million to date this election cycle. (Interestingly, only 17 individuals account for contributing nearly half of that amount to Super PACs.) Because of regulations promulgated under the internal revenue service, contributions by certain non-profit organizations to these Super PACs can remain undisclosed, and therefore hidden from public view.

So how did we get to this place of largely anonymous, largely unlimited campaign spending? The Court's decision in Citizens United, while surprisingly incremental in some ways, opened the doors for the record-breaking spending we are now seeing. In Citizens United, the Court essentially came to two conclusions. First, the Court said that speaker-based identity restrictions are impermissible. This means that if a restriction cannot be validly imposed on an individual, then it similarly cannot be imposed on a corporation. Second, the Court found that independent expenditures are not corrupting. So go ahead and spend $100 million in support of your favorite candidate (or against that candidate's opponent). As long as your expenditure is "independent" it cannot corrupt, according to our nation's highest court.

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March 12, 2012

Jessica Levinson Summary Judgments Blog.jpg By Visiting Associate Clinical Professor Jessica Levinson

Suit up. It is almost time for another election in California. We all know what that means: more ballot initiatives. (Insert sighs, grumbles and other sounds of disappointment here).

In June we will be asked to vote on a proposed cigarette tax. Opponents of the measure -- big tobacco companies, including Philip Morris and R.J. Reynolds Tobacco -- have raised almost $15 million to defeat the measure. But if you're looking for ads from them, it will be much easier for you to look for the committee they have funded, Californians Against Out-of-Control Taxes and Spending. (Note to California legislators, time to improve disclosure and transparency for ballot measure spending).

Proponents of the measure have raised almost $3.2 million. The committee receiving those funds is called Californians for a Cure.

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February 27, 2012

Levitt2.jpgBy Associate Professor Justin Levitt

The lines of our election districts lie at the core of our democracy. They decide whose voices are represented, and to what degree. New York's districting process rarely serves as a model of civic virtue. But now, there's an unusual chance for change.

In Albany, legislators choose their voters more than the other way around. It is a Twilight Zone process; incumbents purport "To Serve the Public," and cycle after cycle, we discover it's a cookbook that they're using.

Where legislators are in charge of drawing their own lines, there is a natural tendency to choose private and partisan self-interest over the public interest. If you had the capacity to ensure your own job security, no matter how well you performed ... wouldn't you do the same?

Both Democrats and Republicans have used this process to their advantage, and to the detriment of voters of every stripe, in New York no less than elsewhere. The current process is bogged down as incumbents bicker over who can grab more for themselves. Governor Cuomo has boldly tried to break the cycle, by threatening a veto of the legislature's latest, something predecessors have been unwilling to do.

The veto threat is right. But maybe, just maybe, not the veto itself. A veto would likely throw matters definitively to the courts, which is a slow and expensive route -- and involves a responsibility the courts don't want. Just look at the ongoing mess in Texas.

A veto is also a one-time answer. It is essentially a spanking -- it stings, but it's temporary, and will not ultimately stop the bad behavior when Cuomo is no longer governor.

The meaningful veto threat, however, provides abundant leverage. If Cuomo used that leverage to have the courts draw maps now, it would consign us to repeat the same nonsense in 10 years. Instead, he could look to the future.

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January 31, 2012

Jessica Levinson Summary Judgments Blog.jpgBy Professor Jessica Levinson

When people pose questions like, "Do you want to save our democracy? Our environment? Our schools?" I either answer "no" or keep walking. It is signature gathering time in California, and most of us have experienced that awkward moment when we are approached by an energetic, and often aggressive, petition gatherer. Inevitably the signature gatherer poses the type of question that would seem unimaginable to answer in the negative. And yet, I do, if I respond at all. Why?

The more I think about and study the initiative process, the more I feel committed to the idea that I will not sign petitions for ballot measures. I say this with full awareness of the fact that I am and have been a strong proponent of the independent redistricting commission, which was created by a ballot initiative. I have struggled with the idea that perhaps initiatives should only affect governmental processes such as redistricting, term limits and campaign finance laws. The problem with that approach has played out thanks to our term limit law.

So do not get me wrong, I think at least a portion of these proposed ballot initiatives would support worthwhile ideas or causes, I just do not think they should be made into the law through the initiative process. (The problem, of course, is that some of these ideas may never be enacted via the legislative process as this is a representative democracy, and frankly, that is what happens). In addition, many -- far too many -- of these proposed ballot initiatives sound like great ideas until one actually reads the text of the proposed law.

[Click here to continue reading Levinson's commentary on]

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