Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Sunday, July 31
The Voting Rights Act, Then and Now
With the 40th Anniversary of the Voting Rights Act of 1965 coming up this week, there's been a great deal of attention to what this landmark law has accomplished and whether it's still necessary. On the first question, virtually everyone across the political spectrum agrees that the VRA has been a monumental success, particularly in stopping the exclusion of African Americans in the South. But there's enormous disagreement over whether the Act remains vital to promoting political equality, a debate that's likely to intensify in coming months as key provisions of the VRA come up for renewal.

In this editorial, the Nation lauds the VRA for "tearing down the barriers to equal opportunity at the ballot box," and "remov[ing] the essential political mechanisms that maintained segregation and white supremacy." It proceeds to argue that the VRA retains its importance today, citing as an example the Georgia legislature's recent enactment of a strict voter ID law. Under Section 5 of the VRA, one of the expiring provisions, Georgia's ID law must be "precleared" by the U.S. Department of Justice before it can go into effect. A preclearance request is now pending, with a decision expected in the next week or two. In the same vein, Rose Russell of the Toledo Blade argues for the continuing vitality of Section 5, opining that without this provision we'd see "events like those that led to the creation of the Voting Rights Act in the first place." She goes so far as to suggest that this provision of the VRA, set to expire in 2007, be made permanent.

Taking the opposing view, Abigail Thernstrom argues against reauthorization of Section 5 in this New York Sun op-ed. Prof. Thernstrom agrees that the VRA was vital in dismantling the system of racial exclusion in the South, but argues that Section 5's preclearance requirement has outlived its usefulness. She also disputes whether Section 5 was ever necessary in places like New York City, three boroughs of which were included as the result of low turnout in the 1968 election. Now, she argues, the VRA is being used to require "wildly racially gerrymandered districts that protect minority candidates from white political competition."

Such criticism of Section 5 isn't limited to those on the right like Thernstrom. In a recent essay entitled "Is Section 5 of the Voting Rights Act a Victim of Its Own Success?," Prof. Sam Issacharoff suggests that the answer to his question may be yes, focusing especially on congressional redistricting and evidence that Section 5 is susceptible to partisan manipulation by officials Washington -- more specifically, that the malleable standard for preclearance may lead the Department of Justice to preclear plans politically advantageous to the party in control of the White House, while denying preclearance to those which are less advantageous.

My take: I think there's something to admire and something to criticize in each of these perspectives. All of these commentators are right to acknowledge that the VRA, including Section 5, was enormously successful in dismantling barriers to minority participation. Where I disagree with Prof. Thernstrom is in her suggestion that racial politics is a thing of the past. As Prof. Michael Pitts persuasively argues in this forthcoming article, Section 5 remains vitally, particularly in discouraging local politicians from adopting practices that would diminish minority political power.

Even at the state level, the move to impose strict voter identification laws demonstrates the continuing need for the VRA. True, it's difficult to demonstrate discriminatory intent with respect to such laws -- state legislators would be too smart to admit that they're adopting such practices in order to exclude blacks or other minorities from voting, even if that were there intent. Yet the available evidence indicates that racial minorities, along with elderly citizens, people with disabilities, and poor people generally will be particularly hard hit by strict voter ID laws, since these groups are less likely to have ID.

On the other hand, Thernstrom and Isaacharoff are right to point out that Section 5 is subject to partisan manipulation by the party in control of the White House and, therefore, the Department of Justice. For this reason, I tend to doubt that the preclearance process will prove to be an effective remedy for measures like the Georgia ID law. Even though this law will likely have a "retrogressive" effect, by serving as a barrier to minority voters' participation, it's extremely unlikely that the Bush II Justice Department will deny preclearance. I hope to be proven wrong in this prediction. But in any event, we should be thinking about other mechanisms, such as the one I suggested here, to take preclearance out of DOJ's hands, at least when it comes to state-level decisions -- I'm more inclined to trust DOJ to administer Section 5 fairly when it comes to decisions made at the local level, where the powers that be in Washington are less likely to have a partisan interest in the consequences.

Finally, while I largely agree with Russell's Blade op-ed on the continuing vitality of the VRA, making the expiring provisions permanent is an uncommonly bad idea. The fight to reauthorize the expiring provisions of the VRA will be difficult, but even more difficult will be the legal fight that follows, to uphold those provisions against constitutional challenge -- a battle that will likely wind up in the U.S. Supreme Court. The concerns that Sen. Edward Kennedy has raised about Supreme Court nominee John Roberts' record on voting rights only heightens the importance of this fight. If Section 5 were made permanent, it would substantially increase the likelihood of this provision being held unconstitutional by the Supreme Court, on the ground that it's not "congruent and proportional" to the constitutional harm. In effect if not intent, then, Russell's suggest amounts to a poison pill for the VRA, one that Congress should reject.
Friday, July 29
The EAC on Voter ID and Paper Trails
Yesterday's public meeting and hearing of the EAC in Pasadena featured discussion of voter identification and provisional voting requirements in the morning, and of the EAC's proposed voluntary voting system guidelines in the afternoon. The EAC also approved revised guidance on statewide voter registration lists, which must be in place by 2006. (This guidance doesn't appear to be posted on the EAC's website yet, though an earlier version may be found here.)

Tom O'Neill of the Eagleton Institute and I testified in the morning on the status of research we're conducting for the EAC on provisional voting and identification requirements. This includes a 50-state survey of state statutes and administrative regulations in both areas. Among the questions we seek to answer is what states have actually done to implement HAVA's provisional voting requirement, and how states that had a pre-existing provisional voting requirement differed from those that did not.

The afternoon hearing featured comments from both state election officials and academic experts on the proposed voting system guidelines. One of the challenges that states face is that the guidelines aren't yet in final form, yet states have to move forward with procuring new technology now, in order to meet the 2006 deadline for replacement of punch cards and the provision of at least one unit per polling place that's accessible to people with disabilities. To aid states in the process, the EAC recently issued this directive. Styled a "gap analysis," it provides instruction on the requirements of HAVA that go beyond what's required by the previous set of voting system guidelines, issued by the Federal Election Commission in 2002.

In other EAC news, the Senate has confirmed former Colorado Secretary of State Donetta Davidson, to fill the seat on the commission vacated by former Chair Buster Soaries.
Thursday, July 28
League of Women Voters' Ohio Lawsuit
The League of Women Voters of Ohio and several individual voters have sued Ohio's Secretary of State Ken Blackwell and Governor Bob Taft, for what they term "a pattern of maladministration, wanton disregard of their duties under Ohio and federal law, and the creation and maintenance of a non-functioning voting system." The complaint can be found here. Attorneys for Plaintiffs include the Lawyers Committee for Civil Rights Under Law, the National Voting Rights Institute, People for the American Way, and private law firms.

The 66-page complaint's allegations include:

- non-uniform standards, procedures and rules,

- a "deeply flawed and wholly inadequate" registration system,

- defects in the issuance and processing of absentee ballots,

- machine allocation problems and resulting long lines,

- maladministration of provisional voting,

- a statewide registration database system that fails to comply with the Help America Vote Act,

- inadequately trained poll workers, and

- the failure to provide access to voters with disabilities.

The complaint alleges that the problems identified are "longstanding." Plaintiffs' claims are brought under the Equal Protection Clause of the U.S. Constitution, the fundamental right to vote under the Due Process Clause, and HAVA. The case, League of Women Voters of Ohio v. Blackwell, has been assigned to Judge James Carr in the U.S. District Court for the Northern District of Ohio.

Plaintiffs complaint also indicates that they intend to move for preliminary injunctive relief.

My take: This is a "kitchen sink" complaint, which includes many of the very serious problems that have emerged in Ohio's past elections. While it's difficult to evaluate the likelihood of any or all of these claims ultimately succeeding, especially at such an early stage, one issue that bears especially careful scrutiny is Ohio's compliance with HAVA's requirement that a statewide registration database be in place by 2006.

Very little information has been made publicly available about exactly what's going on with Ohio's HAVA-required database. The complaint alleges on information and belief that the procedures that will be followed won't actually be uniform, instead giving "broad discretion" to counties. It further alleges that this will result in voters being removed without adequate notice and in disparities from county to county -- something that might violate equal protection as well as HAVA.

The Plaintiffs' statement that they intend to seek a preliminary injunction indicates that this case may be on a fast track. One of the very useful things that could emerge from discovery, if it takes place promptly, is to find out exactly what Ohio's doing with its statewide registration database.
Wednesday, July 27
The EAC (and Me) in Pasadena
I'm headed to Southern California, for the Election Assistance Commission's meeting in Pasadena tomorrow.

Expecting a Big Crowd Tomorrow

The agenda for tomorrow's public meeting and hearing can be found here. I'll be testifying in the morning on resarch that Election Law @ Moritz and Rutgers University's Eagleton Center are jointly conducting for the EAC, on voter identification and provisional voting. The afternoon will feature discussion of the proposed voluntary voting system guidelines, with Thad Hall of the University of Utah, Ted Selker of MIT, and David Dill of Stanford among those scheduled to present.

Tuesday, July 26
Past and Prologue: The Voting Rights Act
Voting rights activists and experts met today in Washington, to discuss both the gains that have been accomplished through the Voting Rights Act and the future of the provisions that expire in August 2007. The Baltimore Sun has this report, and AP has this one on a press conference that civil rights leaders held today. The most important provisions that expire are Section 5, which requires that certain states and jurisdictions "preclear" changes in their election procedures, and Section 203, which requires bilingual assistance in jurisdictions with large numbers of non-English proficient voters.

Theodore Shaw of the NAACP Legal Defense and Educational Fund is quoted as opposing any move to make the expiring provisions of the VRA permanent. He notes that this would be a "trojan horse," increasing the likelihood that the U.S. Supreme Court would strike down the reauthorized VRA as being beyond Congress' powers.

I agree with Shaw. The most difficult battle may turn out to be not the one to convince Congress that the VRA should be reauthorized, but rather to persuade the Court that the Act should be held constitutional. Critical to this effort will be hearings being conducted by the National Commission on the Voting Rights Act, which is holding hearings throughout the country in an effort to build an evidentiary record. The Commission is chaired by former Assistant U.S. Attorney for Civil Rights Bill Lann Lee.
Voting Rights Act Conference
The Leadership Conference on Civil Rights and other civil rights organizations are hosting a National Conference on the Voting Rights Act in Washington DC today. Reuters has this report. I'll be attending the conference and moderating one of the panels. Rep. John Lewis (D-GA) opened things up last night with a rousing speech recounting in vivid detail his experiences in 1964 and 1965 leading up to passage of the Act, including "Bloody Sunday" (March 7, 1965) on which he and other protesters were viciously beaten as crossed the the Edmund Pettus Bridge on the outskirts of Selma.
Monday, July 25
The Century Foundation's Report on Election Reform
The Century Foundation today released a new report on election reform, entitled Balancing Access and Integrity. The report is the product of a working group on state election reform, on which I served along with Tova Wang of the Century Foundation, Guy-Uriel Charles of the University of Minnesota Law School, Ned Foley of Moritz, Sam Isaacharoff of Columbia Law School, Martha Kropf of the University of Missouri-Kansas City, Norm Ornstein of the American Enterprise Institute, and Roy Schotland of Georgetown.

The report examines how the Help America Vote Act has changed the country's election system, including the unforeseen problems that the Act's implementation created. Among the report's recommendations are:
- in the area of voter registration, states should promulgate clear rules for what missing information will be the basis for disqualification, and should implement a system in which voters get a receipt and "tracking number" when they register,

- voters who arrive at the polls without HAVA-required identification be given at least three days to produce this information,

- the provisional ballots of those appearing at any precinct within the county of residence be counted for countywide, statewide, and presidential races,

- statewide voter registration databases search for "near matches," so that voters' identities can be verified in advance of elections, notwithstanding transposed characters and other minor discrepancies, and

- states not expand voter identification at this time, and those that do require such identification should make it available at the state's expense.
We believe it to be the first comprehensive assessment of what states can do to improve the administration of their elections, in the wake of the 2004 election, and hope that its recommendations are ones on which bipartisan consensus will be possible. Comments are welcome!
Sunday, July 24
Race and Ohio's Machine Shortage
Last month, the U.S. Department of Justice wrote this letter rejecting the conclusion that the allocation of voting machines in Franklin County, Ohio (Columbus area) violated Section 2 of the Voting Rights Act. That section of the VRA prohibits election practices that result in the denial or dilution of the vote on account of race. As I discussed here, DOJ's letter purported to exonerate Franklin County of any claim that it violated Section 2.

But not so fast .... Professor Walter Mebane of Cornell University has written this analysis criticizing DOJ's findings and conclusions. In a nutshell, Prof. Mebane argues that DOJ asked the wrong question, considering only whether machines were misallocated to heavily white polling places and away from heavily black ones. He further argues that if the right question is asked -- namely, whether the shortage of voting machines in Franklin County had a disproportionate impact on black voters -- the answer is probably yes.

DOJ hinged its conclusion that there was no violation on the fact that:
[T]he allocation of voting machines actually favored black voters because more white voters were voting on each voting machine than black voters. (Specifically, white precincts averaged 172 voters per machine, while black precincts averaged 159 voters per machine.)
The DOJ acknowledged that there was a "lack of sufficient machines" in Franklin County, stemming from the large overall turnout. It also acknowledged that there were more registered voters per machine in predominantly black precincts than in white ones, although fewer actual voters (i.e., ones who turned up at the polls) per machine in black precincts. This is because turnout was lower in black precincts: "Within the 12 most heavily white precincts, voter turnout was 78.9%. In the 12 most heavily black precincts, turnout was 61.8%."

The problem with DOJ's analysis, Prof. Mebane explains, is that it fails to examine the possibility that the inadequate number of machines had a disproportionate effect on black voter turnout. Relying on the DNC report on Ohio, Mebane notes that Franklin County's "African-American voters reported waiting an average of 52 minutes before voting, while white voters reported waiting an average of 18 minutes." Why might that have been the case, given that there were actually fewer actual voters per machine in heavily black precincts? It appears to be because voters in those precincts took longer to vote -- there were 11 votes cast per hour in precincts with the highest percentage of African Americans, compared to 13 votes per hour in those with the lowest percentage of African Americans. (This is probably due to lower educational levels or less experience voters, both of which one might expect to increase the time it takes a person to vote, though Mebane doesn't go into this.)

In any event, the big question, one that DOJ's report doesn't answer, is whether the inadequate number of voting machines in Franklin County had a disparate impact on the turnout of African American voters. Mebane concludes that it did: "The allocation of voting machines reduced voter turnout more among African American voters than among white voters."

The next question is whether this finding, if accurate, would support a claim under Section 2 of the VRA. Mebane doesn't answer this question, but I think there's a strong argument that it would, regardless of whether Franklin County's conduct was malicious or negligent. Intent isn't the standard under Section 2. The operative question instead is whether the challenged practice "result[ed] in" the denial of votes on account of race. While I don't know of any cases on point, if Mebane's analysis of the facts is right, a claim could certainly be made that the inadequate number of voting machines in Franklin County violated Section 2 of the VRA.

Update: Michael McDonald of George Mason University has this response, which he posted on the Election Law listserv and which I'm reprinting (in edited form) with his permission:
I would be cautious in moving forward with this VRA claim against Franklin County.... My understanding is that Franklin County was inundated with new registrations near the end of the registration period. By the time they processed these forms, it was too late to change the allocation of voting machines to the precincts as the preparation for the election was well underway....

Mebane claims that African-American voter turnout was lower as a consequence of the misallocation of machines. However, the first evidence cited for this claim is a self-reported survey of waiting times. First, we should always be cautious of self-report bias in a survey. Furthermore, from the DOJ report, which Mebane confirms as being true: "the allocation of voting machines actually favored black voters because more white voters were voting on each voting machine than black voters." This seems at odds with the claim of long lines. The only way it can work out is that the flow of voters was uneven during the day and that at peak voting hours, African-American voters had longer lines, became discouraged, and didn't vote....

There very well could have been a problem as African-American voters in Franklin County reported and that Mebane and Herron describe, though I doubt it was intentional or could have even been avoided by the Franklin County election officials. The messiness of the election statistics and the small estimated turnout effect probably mean that we can't accurately uncover the truth. Before someone goes spending money to advance a Section 2 lawsuit, I hope they take pause in considering the accuracy of Mebane and Herron's report and the arguments that can be marshaled against it.
Prof. McDonald's complete and unedited response can be found here. A reply from Prof. Mebane is available here.
Friday, July 22
Judge Roberts and the Voting Rights Act
Today's Boston Globe has this story on civil rights groups' concerns regarding memos that Supreme Court nominee John Roberts wrote, while an aide in the Reagan Administration. The Globe reports that:
The blacked-out memos show that Roberts drafted op-ed pieces, talking points, and letters to the editor that went out under the name of Attorney General William French Smith to help promote the Reagan administration's efforts to limit the circumstances under which minorities could bring voting-rights claims.
It goes on to note that he later wrote briefs opposing affirmative action programs while in private practice.

These positions have civil rights groups understandably concerned. Theodore Shaw of the NAACP Legal Defense Fund says the statements aren't enough to disqualify Roberts, but heighten the importance of his being forthcoming as his nomination proceeds to the Senate.

My take: The initial instinct of Judge Roberts, like others who have appeared before the Senate, will undoubtedly be to reveal as little as possible about his views. He might, for example, try to portray memos arguing against amendments to the Voting Rights Act (which I discussed here), as simply a reflection of the Reagan Administration's policy. So too, he might seek to characterize his briefs on affirmative action as simply reflecting the views of his clients.

I think this strategy would be a mistake. The problem is that, with such a slender judicial record -- Roberts wasn't appointed to the D.C. Circuit until 2003 -- it's very hard to know what Judge Roberts real views on any of these subjects are. In my view, this means that Judge Roberts should be forthcoming in saying whether he in fact agrees with the positions he was espousing in those cases. It may be the case that he doesn't stand by the positions he's taken in the past, either because he was representing a client (or the Reagan Administration) or because his views have evolved over time. But Judge Roberts shouldn't dodge questions about what his real views are on these questions.

For supporters of the Voting Rights Act, there may be a slender ray of hope as to whether or not he would uphold the constitutionality of that Act, particularly the provisions that are set to expire in 2007 and must be reauthorized in they're to continue after that date. Ironically, it comes from a position he took opposing busing for desegregative purposes. The Washington Post reports here that, while a young lawyer in the Reagan Administration, Roberts took the position that Congress would have the power to enact legislation prohibiting busing in the schools. In taking this position, he disagreed with the strong state sovereignty position advanced by none other than Ted Olson, then an assistant attorney general.

Why do I say that this might bode well for the Voting Rights Act? Because in opposing Olson's state sovereignty argument, Roberts reportedly relied on Congress' authority to enforce the Fourteenth Amendment. The view that Congress has broad authority when it comes to enforcement of the constitutional guarantees in the area of equal protection would actually bode well for upholding a reauthorized Voting Rights Act, in the inevitable event that it's challenged.

This may well be projecting excessive optimism. But it is critical that Roberts be questioned extensively on his views regarding state sovereignty and federalism, particularly when it comes to Congress' power to protect voting rights through legislation. It's also essential that he answer rather than evade these questions.
Wednesday, July 20
Preclearance, Preclearance, Preclearance
Section 5 of the Voting Rights Act of 1965 has been in the news a lot lately. Just today, there are three important news items relating to this provision, which requires certain covered jurisdictions -- including several states in the South and some counties elsewhere -- to obtain "preclearance" of any changes to their election procedures from either the Department of Justice or the U.S. District Court in Washington, D.C. This provision was designed to prevent covered jurisdictions from making changes to their election laws that surreptitiously harm minority voters.

First, the Mexican-American Legal Defense and Education Fund (MALDEF) today brought a lawsuit today against the State of California and Monterey County, challenging the failure to preclear Proposition 77, which is to appear on the California ballot on November 8, 2005. The initiative would change the manner of drawing districts throughout the state, taking it away from the legislature and giving it to retired judges. Monterey County is a covered jurisdiction under Section 5, meaning that changes to its election procedures must be approved, even if they take the form of changes mandated by state law. MALDEF is seeking a temporary restraining order preventing Proposition 77 from being placed on the ballot until preclearance is obtained. The San Jose Mercury News has this story on MALDEF's case, and parallel lawsuits by the California Attorney General and other groups seeking to stop Proposition 77.

Second, the New York Times has this editorial on a currently pending request by the State of Georgia, to preclear a law requiring voters to show photo identification. The U.S. Department of Justice is currently considering Georgia's preclearance request. The NYT urges that DOJ reject the request to preclear, on the ground that the proposed ID requirement would have an adverse impact on minority voters. I think the NYT is right on target here, particularly given recent evidence that young black male voters are much less likely to have a driver's license than others. I've taken a look at the materials that Georgia has submitted in support of its preclearance request, and don't see anything that would meet its burden of showing that the ID requirement is "nonretrogressive" -- i.e., that it won't make black voters worse off than they were before. But I'm skeptical as to whether DOJ will apply the preclearance requirement faithfully, given that photo ID measures are strongly backed by most Republicans and strongly opposed by most Democrats.

Third, the Washington Times is reporting that the Republican Party is planning to initiate reauthorization of Section 5 of the Voting Rights Act, which is scheduled to expire in August 2007. The Chair of the House Judiciary Committee, Rep. James Sensenbrenner (D-WI), is talking about a 25-year reauthorization of at least some parts of the Voting Rights Act which will expire then. According to Sensenbrenner, hearings will begin in the fall.

Why would the Republicans do this? Maybe to take this issue away fromt he Democrats. And maybe because, historically, the Voting Rights Act has been of some benefit to the Republican Party. Under the first Bush Administration, for example, the Administration refused to preclear redistricting plans without a sufficent number of majority-minority districts. Some have speculated that it's because packing reliably Democratic black voters in "safe" minority districts allows Republicans to make overall gains in the number of congressional and state legislative seats they hold. This phenomenon has been referred to as a "happy coincidence" between the interests of racial minorities and the interests of the Republican Party.

It remains to be seen, of course, whether DOJ will rigorously enforce Section 5 of the Voting Rights Act, when it comes to practices -- like the Georgia ID law -- that threaten to result in the denial of minority votes, or districting changes -- like Proposition 77 -- that would weaken the Democratic Party's hold on power in a state.
Tuesday, July 19
Bush Picks Roberts

The New York Times and Washington Post are among the many reporting that President Bush has selected Judge John G. Roberts, Jr. of the U.S. Court of Appeals for the D.C. Circuit to fill the vacancy created by Justice O'Connor's retirement. Generally considered a rock-solid conservative, Roberts is 50 and was confirmed to the D.C. Circuit in 2003.

From a voting rights perspective, the most significant factoid from Judge Roberts' personal history appears to be his opposition in the early 1980's to a Voting Rights Act Amendment that would make it easier for racial minorities to obtain relief for election practices that weaken their voting strength. In its profile on Judge Roberts available here, Slate.com notes that, while an attorney in the Reagan White House, Judge Roberts "opposed a congressional effort--in the wake of the 1980 Supreme Court decision Mobile v. Bolden--to make it easier for minorities to successfully argue that their votes had been diluted under the Voting Rights Act."

In Mobile v. Bolden, the Supreme Court refused to recognize a claim by black voters against the City of Mobile's at-large election scheme which had the effect of systematically weakening the electoral influence of the city's black minority. The Supreme Court held that proof of discriminatory intent was required. Congress subsequently amended the Voting Rights Act, to make clear that practices which "result in" the denial or dilution of votes on account of race are subject to challenge.

Judge Roberts' views on voting rights are something to which the Senate should give careful attention, as it considers his nomination. One of the big questions is whether a Justice Roberts would hold the Voting Rights Act unconstitutional, to the extent it prohibits election practices that have the effect of weakening minority voting strength.
Will Bush Pick Clement?

No, not that Clement.

This one.
Judge Edith Brown Clement

The blogosphere has been abuzz with rumors that Judge Clement (not to be confused with the Red Sox All-Star pitcher) will be nominated to replace retiring Associate Justice Sandra Day O'Connor. CNN reports that the announcement will be made at 9:00 this evening, but that three "informed sources" say that Judge Clement won't be the nominee. See here for my thoughts from a couple weeks ago. My prediction was that President Bush would go for an archconservative, rather than someone like Judge Clement who's conservative but a bit more of an unknown ... but who knows. Stay tuned.
Frankin County Election Chief Suspended
The Franklin County Board of Elections has suspended its elections director Matt Damschroder, for forwarding a $10,000 check from a Diebold representative to the Republican party. Damschroder was suspended without pay for 30 days, but not fired. The Cleveland Plain-Dealer has this story. He'll continue to work but will be docked approximately $11,000 for his ethical lapse.

As noted in Sunday's post, Damschroder admitted that Paschale Gallina, a consultant working for Diebold, gave him the check which he in turn forwarded to the county Republican Party -- something Damschroder now acknowledges was a mistake. The board's chair William Anthony, a Democrat, says that Damschroder has done a good job for the county and made an error in judgment, but didn't take a bribe.

Still unresolved is whether Gallina also gave $50,000 to Secretary of State Ken Blackwell's "political interests," and (possibly in return) worked out a deal with Blackwell's consultants on the price that Ohio would pay for Diebold voting machines. Blackwell's consultant, Norm Cummings, denies that any such conversations occurred. ES&S is reportedly seeking to take Cummings' deposition in its lawsuit against the Secretary of State.
Monday, July 18
Arizona Voter ID
Today's Arizona Republic has this excellent report on the disagreement regarding the implementation of a voter identification requirement imposed by the state's Proposition 200, which has county election officials warning of long lines at the polls. The Republican Secretary of State and Democratic Attorney General negotiated proposed rules, but the U.S. Department of Justice and Governor Janet Napolitano (a Democrat) have yet to sign off.

Proposition 200 (text here) purports to target illegal immigration. It requires voters to present either a photo ID or two forms of other identification that bear the name and address of the voter, but it less than clear about what types of identification suffice. Arizona officials have been fighting over how this requirement should be implemented.

The Arizona Republic reports that, under the agreement between the Secretary of State and Attorney General, those lacking the requisite identification wouldn't even be permitted to cast a provisional ballot, regardless of whether their names appear on the registration list. That's not consistent with HAVA, as I explained here. Nevertheless, DOJ seems likely to sign off on this, given that they've taken the position -- quite clearly an erroneous one, in my view -- that voters need not even be given a provisional ballot if they lack ID.

Some county registrars are very unhappy with the new proposed requirements. So are civil rights groups, particularly those concerned with the rights of Latinos and Native Americans who are likely to be especially hard hit by the ID requirement. The Pima County registrar expresses concern that young people and those who've recently moved will also be disenfranchised, since they may not have a utility bill or other compliant document with their name and current address on it.

In response to these concerns, the Attorney General and a representative of the Secretary of State's office emphasize that the proposed procedures are just a draft. Let's hope so. The proposed rules, if accurately described, aren't compliant with HAVA and would be a nightmare for voters and election officials alike. I'm not sure that there's any good way to implement the requirements of Proposition 200, but one that prohibits voters without ID from even casting a provisional ballot is a sitting duck for a lawsuit.
Sunday, July 17
Did Diebold Pay to Play?
The Columbus Dispatch reports that a representative of voting system vendor Diebold may have been spreading money around the State of Ohio, in order to influence the election officials' purchasing decisions. The Dispatch story is available only by subscription but the AP has this report. The story comes as the state is still reeling from an influence-peddling scandal by rare-coin dealer and GOP contributor Tom Noe.

The latest allegations concern the actions of Paschale Gallina, who's reportedly a consultant working for Diebold. Matt Damschroeder, the Director of Franklin County's Board of Elections, says that Pasquale approached him wanting to make a $10,000 contribution -- and asking whom the check should be made out to -- on the same day as the county started taking bids for voter-registration software. Damschroeder says he told Pasquale "you're certainly not going to make it out to me," but that Gallina instead wrote a check to the Franklin County Republican Party instead. Damschroeder (who is a Republican) says he took the check and sent it to the county party, something he now admits was a mistake: "I should have thrown Mr. Gallina out of the building." Diebold didn't get the contract, and Damschroeder says he never recommended the company, but he's now reportedly under investigation by the county prosecutor.

Even more disturbing are some of the statements that Gallina allegedly made to Damschroeder about his efforts to curry influence with Secretary of State J. Kenneth Blackwell's office. According to Damschroeder, Gallina bragged about $50,000 that he'd given to Blackwell's "political interests." The Secretary of State's spokesperson denied any such payment, but acknowledged that Gallina had contributed $8000 to Blackwell's campaigns since 1998. Gallina refused to tell the Dispatch whether he'd written a $50,000 check to any organization associated with Secretary Blackwell, but the AP reports that Gallina denied any such contribution.

The revelations apparently came to light as the result of a lawsuit that Diebold's rival voting machine vendor ES&S has pending against Secretary Blackwell, which I've previously discussed here. In related news, the Toledo Blade reports that the Ohio Supreme Court will consider whether ES&S's lawsuit should be transferred to the Ohio Court of Claims, which ordinarily hears matters involving monetary relief against state officials.

My take: Paying to play in Ohio? Say it ain't so.

As I discussed in this Findlaw.com column, spreading around money to obtain political influence appears to be a routine practice in Ohio. The contributions of Tom Noe, for example, never even raised an eyebrow -- until some $12 million in state assets turned up missing. It therefore would come as little surprise if Diebold or other voting machine makers were spreading money around in hopes of obtaining favorable government consideration. In fact, if you looked carefully at campaign contributions, I suspect you'd find this sort of thing happening all the time, be it on voting machines, rare coins, or any other type of business.

In short, the latest news isn't just about voting machines, any more than the Noe scandal is just about rare coins. It's about how those with money use it to influence official decisionmaking.
Friday, July 15
Rehnquist Answers

A follow-up on this post two weeks ago regarding the possibility of Chief Justice Rehnquist retiring. The Chief issued a statement last night stating that he has no imminent plans to retire: "I want to put to rest the speculation and unfounded rumors of my imminent retirement. I am not about to announce my retirement. I will continue to perform my duties as chief justice as long as my health permits."

This is consistent with what I suggested in my prior post -- namely, that if the Chief were planning to retire, he'd announce it within a week of Justice O'Connor's retirement announcement.

Last night's announcement clarifies that, at least for the time being, the President will have one and not two slots to fill. But it's an important slot, given Justice O'Connor's status as the swing vote on key voting rights cases, as on so many other constitutional and civil rights questions. In view of the present debate over reauthorization of key provisions of the Voting Rights Act of 1965, an especially salient question is how this appointment will affect the Court's deliberations over the VRA's constitutionality, should it be renewed and make its way up to the Court.

Wednesday, July 13
Do Voters Actually Use Paper Trails?
While there have been lots of people calling to require that electronic voting machines generate a contemporaneous paper record (or "voter verified paper audit trail"), there's been little serious analysis of whether such a device will actually provide a workable and effective solution to the security problem. Being able to see a piece of a paper may provide some voters with a sense of comfort. But will it actually ensure that votes are counted accurately? Will it prevent or allow the detection of fraudulent activity? Can we be sure at the end of the day that the paper records are more accurate reflections of voter intent than the electronic records? And will the attached printers actually function as intended, without paper jams or other problems impeding the voting process?

The logical place to begin in answering these questions is to take a careful look at the few places that have experimented with electronic voting systems that print a contemporaneous paper record. Those include Sacramento County and a few places in Connecticut, whose experiences I've discussed in testimony to the EAC last year. It also includes the State of Nevada, which has had the most extensive implementation of an electronic voting with CPR system in last year's election. Surprisingly, there appears to have been relatively little serious examination of these experiments, although Ted Selker of MIT described in his testimony to the House Administration Committee some of his observations, including printers jamming and a poll worker in one case not only handling but literally cutting the paper trail.

Most recently, Selker and Sharon Cohen of MIT have released the results of their controlled experiment, comparing the use of paper and audio paper trails by 36 subjects. The "voters" were each asked to vote in four races, using two different machines. The first was equipped with a contemporaneous paper record (or VVPAT), while the second had a playback function that allowed voters to hear their choices (a "voter verified audio audit transcipt trail" or VVAATT). The two types of systems as well as the design of the study are described in greater detail in Cohen's thesis, available here.

Voter Verified Audio Audit Transcript Trail (VVAATT)

The study worked like this: The verification screens on the electronic voting units all showed the voters choices accurately. But on each audit trail (paper and audio), three of the races had an error while the fourth didn't. The question Selker and Cohen attempted to answer was whether the voters would notice or report these errors in the paper and audio audit trails.

What they found was that voters were much more likely to detect errors with audio than with paper audit trails. Of the 108 elections that contained errors (36 times 3), voters using the audio trail reported 14 errors; voters using the paper trail reported none. Voters were observed noticing the errors 25 times on with the audio audit trail, only three with the paper trail. Although it took longer for voters to use the audio audit trail, voters spotted more errors with it.

The bottom line is that, to the extent the we expect voters to check a contemporaneous paper record to make sure it accurately reflects their choices, Selker and Cohen's study suggests that this won't happen. And if this doesn't happen, then it can't be presumed that the paper record is a more reliable measure of voter intent than the electronic records. This is the sort of research that ought to be done before any state, much less Congress, enacts legislation to mandate a particular auditing device. The burden now lies squarely with proponents of the contemporaneous record to prove that Selker and Cohen are wrong.
Tuesday, July 12
The White House & the Voting Rights Act
Buried amidst the controversy surrounding Karl "Deep Throat, Jr." Rove at yesterday's White House press conference were some interesting remarks from White House Press Secretary Scott McClellan on the reauthorization of the Voting Rights Act.

Undoubtedly relieved to talk about something else after getting battered with Rove questions, McClellan had this to say at the very end of the press conference:

Q Scott, voting rights reauthorization. I understand the President is for voting rights reauthorization, but he still wants to study portions of it. It sounds kind of contradictory. Could you explain what that means, as it's up for renewal?

McCLELLAN: Sure. As you point out, it's up of reauthorization in 2006 [note: the actual expiration date is 2007]. The President does support reauthorization. That process is getting underway in Congress. And as it works its way through Congress, the White House will look at and consider any improvements to strengthen it. And that's -- that's really where it stands at this point.

Q Well, what does he think could strengthen it? What tweaks is he thinking of right now --

McCLELLAN: Well, I think that's something we'll look at. There are suggestions that I'm sure people are going to make as we move forward, and we'll look at and consider those suggestions. The President also met with the Congressional Black Caucus and said he would take their views into account as we move forward, as well.

Two things are interesting about McClellan's response: first, the remark that the President "does support reauthorization;" and second, the comment that he would consider ways in which it might be "strengthen[ed]." It's not clear what this means, and McClellan declined to provide details.

One possible way of strengthening the VRA is suggested by a matter that's presently before the U.S. Department of Justice. The State of Georgia recently enacted a statute that would require government-issued photo ID in order to vote (Georgia House Bill 244). Georgia is a "covered" jurisdiction under Section 5 of the Voting Rights Act. That means that it must "preclear" proposed changes its election procedures before they can go into effect, with either the Department of Justice or the federal court in D.C. Georgia has submitted its ID law to the Department of Justice. As set forth in this letter and this press release, several civil rights groups have urged that the change not be precleared, which would prevent this change from going into effect.

Election changes may only be precleared under Section 5 if they have neither the purpose or the effect of denying or abridging the vote on account of race. The Supreme Court has interpreted this to mean that changes not be "retrogressive" -- that is, that they not make minority voters worse off than they were before. Faithfully applied, this standard would be difficult for Georgia to meet, given that African Americans are less likely to own a car and therefore to have a driver's license. The civil rights groups' letter also notes that, in 1994 and 1995 (under the Clinton Administration), the Department of Justice objected to a Louisiana voter ID law.

There are, however, reasons for doubting that the standard will be faithfully applied now. That's because strict voter ID laws have generally been supported by Republicans, who assert that they're needed to curb fraud, and opposed by Democrats on the ground that they will impede access to elderly, disabled, poor, and minority voters. Wherever one comes down on the ID debate, it's hard to imagine that the Department of Justice won't be influenced by partisan considerations as it decides whether to preclear Georgia's ID law.

This brings me back to McClellan's vague comment about "improv[ing]" the Voting Rights Act. One possibility would be to take responsibility for preclearance, at least in some cases, out of the hands of the Department of Justice. Responsibility might instead be placed in a nonpartisan or bipartisan panel. For example, preclearance might be handled by a board consisting of three Democrats and three Republicans, with a majority required in order to preclear changes. In the event that preclearance was denied, then the state could still go to federal court and seek preclearance.

This is just one possible amendment to the Voting Rights Act that might help eliminate the taint of partisanship that otherwise threatens to inhibit proper functioning of the preclearance process. I don't think this is what McClellan had in mind; nor do I claim that it's the best possible fix. But such modifications ought to at least be considered, as the debate over reauthorization proceeds.

Update: As regular readers of this blog have no doubt noticed, I've been experimenting with images lately. I've gotten some negative feedback on the McClellan/Chef photo, which I've now moved below. No, there's no South Park reference in the text -- I just thought the resemblance between McClellan and Chef's typical hand gesture was funny. But maybe not. Or maybe there's just not that much overlap between my audience and South Park's.

McClellan & Chef: Separated at Birth?

In any event, this is as good a time as any to say that your feedback (positive or negative) is always welcome, be it on style or substance. You can email me through the link in the upper right. I may not always have time to respond, but do appreciate it!

Monday, July 11
Voting Rights Act Reauthorization
Representative James Sensenbrenner (R-WI) has announced that he'll be introducing legislation to extend provisions of the Voting Rights Act that expire in 2007. The AP has this report, and Rep. Sensenbrenner's prepared remarks -- delivered at the NAACP's annual convention in Milwaukee -- may be found here.

The key provisions of the Voting Rights Act set to expire next year are:

- Section 5, which requires that certain states and counties "preclear" election changes to make sure they don't have the purpose or effect of discriminating against racial minorities,

- Sections 6 through 9, which allow federal examiners to observe polling place activities, and

- Section 203, which requires that language assistance be provided to non-English proficient voters in places where they're sufficiently numerous.

The debate over whether to reauthorize the expiring Voting Rights Act provisions is sure to be a lively one in the months to come. And even if the Act is reauthorized, there's certain to be a battle over its constitutionality afterwards, which will be fought out in the courts and may well be decided by the U.S. Supreme Court.

This is of course one of many reasons why the selection of the next justice is so important. The question of Congress' power to enact civil rights legislation has been a major bone of contention on the Supreme Court, one in which Justice O'Connor has often cast the decisive vote.

In addition to the continuing issues regarding HAVA implementation, this blog will discuss the ongoing debate over the Voting Rights Act, as it unfolds in Congress and in the courts.
Thursday, July 7
The Noe Coin Scandal & Freedom of the Press
Over the past couple months, Ohio's newspapers have been filled with revelations about Thomas W. Noe, a Bush "Pioneer" who was given authority to invest $50 million in state workers' compensation funds on rare coins, up to $12 million of which can't be accounted for. I've written this comment which came out on Findlaw.com today, describing the scandal and drawing three broader lessons from it.

1. the need to disqualify big-money campaign donors from receiving investment contracts or appointments to state boards,

2. the need to enforce and, if challenged, uphold federal campaign laws regarding contributions in the name of another are enforced, and

3. the need to end the selection of state judges through privately financed elections.

A fourth lesson from the Noe scandal, one that didn't make it into my Findlaw.com column due to space constraints, is that a free press with the ability to protect its sources is vital to democratic accountability. The Noe coin scandal would not have come to light, had it not been for the efforts of a few hardworking journalists. Particularly worthy of mention is the work of the Toledo Blade, which broke the story in April and has tirelessly pursued it since then. It is a refreshing change from the shallow celebrity-obsessed coverage that sadly typifies today's media.

What may be less obvious is that the courts have an important role to play in protecting a robust press. That role includes providing the press with access to public records that may be needed to get to the bottom of public corruption. It also includes the protection of confidential sources. In the Noe coin scandal, for example, enterprising reporters have relied in part on sources who were only willing to speak on condition of anonymity.

Regrettably, the Supreme Court recently declined to intervene in a case in which two reporters, Judith Miller of the New York Times and Matt Cooper of Time Magazine, were held in contempt of court for refusing to reveal their confidential sources. One wonders whether we would have discovered the full extent of the Noe coin scandal, had the Supreme Court's denial of certiorari in the Miller case come sooner. And we will never know whether future instances of public corruption will go undiscovered, due to whistleblowers who are afraid to step forward for fear of having their identities exposed.
Tuesday, July 5
DOJ: No Discrimination in Ohio Election
The U.S. Department of Justice has concluded that there was no discrimination in the allocation of voting machines by two Ohio counties that experienced exceptionally long lines in the November 2004 election. The letters address complaints arising from Franklin County where Columbus is located, and Knox County where Kenyon College is located. Voters in some Columbus precincts reported lines from 4-5 hours long, while some voters near Kenyon waited until the 4:00 in the morning on November 3 to cast their votes.

The Justice Department found no violations of the Voting Rights Act in either Franklin or Knox County. In Franklin, DOJ's letter says it investigated whether machines were systematically misallocated in a manner that favored predominantly white precincts over predominantly black ones. According to DOJ, "the long lines were attributable not to the allocation of machines, but to the lack of sufficient machines to serve a dramatically enlarged electorate under any allocation." Put more simply, Franklin County simply didn't have enough machines to go around.

As for the alleged racial disparity in Franklin, DOJ finds that there were more registered voters per machine in predominantly black precincts than in predominantly white ones. However the number of actual voters (i.e., those who showed up) per machine was actually higher in predominantly white precincts than in black ones, according to DOJ.

What's still not clear, as the DOJ acknowledges, is whether voters in black precincts actually waited longer than voters in white precincts. Even if there were more voters per machine in white precincts overall, as DOJ concludes, it may still be the case that lines were longer in white precincts. That's because "predominantly black precincts had larger numbers of newly registered, first-time voters -- 17.6% of voters in the 50 most heavily black precincts compared to 7% in the 50 most heavily white precincts."

One would expect that new voters would take longer to vote than experienced voters; thus, there might be longer lines in precincts with more new voters. In addition,one would expect more provisional ballots cast in those precincts (newly registered voters are more likely to be omitted from the list and therefore to need a provisional ballot). This would also slow down the voting process, resulting in longer lines.

As for Knox County, the DOJ's investigation focuses on the Gambier/Kenyon precinct, where many Kenyon College students voted. DOJ examined whether the allocation of voting machines compromised the Twenty-Sixth Amendment right of 18-21 year olds to vote, protected by the Voting Rights Act, 42 USC 1973bb. Here also, DOJ finds no violation. DOJ attributes the long lines at the Kenyon precinct to a sharp increase in turnout that "Knox County was simply not equipped to handle." Interestingly, a large number of voters at the precinct registered shortly before the election, and DOJ finds that the decision about how to allocate voting machines was made before many of those registrations were received.

This begs the question of why Knox County officials didn't adjust their allocation decisions, when the new registration numbers came in. The DOJ's answer to this question is less than completely satisfying, to my mind. It finds that officials were "overwhelmed" and "lacked the resources to resolve many of the issues." DOJ reports that Knox County has agreed to increase its stock of voting machines to make sure this doesn't happen again.

My take: Whether or not there was intentional discrimination, the lines in both Franklin and Knox Counties were a total disgrace. If the problem is that counties lack the staff and machines needed to deal with sharp increases in registration or turnout, the obvious solution is to make sure that local election officials have those things.

The big open question is whether HAVA's long-overdue allocation of money to make our elections better was simply a one-time deal or, alternatively, whether we're willing to make a long-term commitment to improving the infrastructure of our democracy on an ongoing basis. If it's the former, we can expect to see more inexcusably long lines, like those which took place in Columbus and Gambier, in future elections.
Saturday, July 2
Independence Day

Enjoy the holiday!
Blogging will resume after the 4th.
Friday, July 1
Who Will Be the Next Justice(s)?
All eyes are focused on the United States Supreme Court today. The most powerful woman in the United States, Associate Justice Sandra Day O'Connor, announced her retirement this morning.

Whoever is nominated to replace her can expect to have a major impact on voting rights, including such issues as the constitutionality of the Voting Rights Act, racial gerrymandering, partisan and incumbent gerrymandering, and campaign finance regulations -- not to mention such statutory questions as how the Help America Vote Act should be interpreted, whether it provides a private right of action, and the permissibility of such practices as felon disenfranchisement and ID requirements under the Voting Rights Act. I therefore hope you'll indulge me in sharing some thoughts over who the next nominee or nominees might be, even though it's outside the usual scope of this blog.

Should I Stay or Should I Go?

Who will be nominated depends in large measure on whether there will be one or two slots for President Bush to fill. There has been considerable speculation that Chief Justice Rehnquist would step down, and it's still not known whether he'll retire before the next term starts in October. The Washington Post has this story on the question of the Chief's retirement -- along with some nifty old pictures of both Rehnquist and O'Connor from their days at Stanford, where the then-justices-to-be-now-soon-to-be-ex-justices once dated.

Rick Hasen argues that it would make sense for the Chief to retire now so that the two new nominees can be sold as a package. On the other hand, Lyle Denniston of SCOTUSblog tentatively predicts that the Chief will remain, to avoid the prospect of having two vacancies on the Court.

I have no clue what the Chief's plans are but would expect that, if he does plan to step down, an announcement will come within the next few days, so that there's an opportunity for two nominees to be selected and confirmed before the next term. We should therefore know shortly -- I'd say by the end of next week -- whether there will be one or two vacancies to fill before the October 2005 term commences.

What follows is my thinking on who'll be appointed, first if the Chief stays and next if he goes. For those who are impatient, my bottom-line predictions appear at the end of this post.

If the Chief Doesn't Step Down . . .

Had Chief Justice Rehnquist been the first to retire, I would have predicted Judge Michael Luttig of the U.S. Court of Appeals for the Fourth Circuit as the nominee. His profile, along with those of several other rumored candidates, can be found on Slate.com. Judge Luttig is very smart and very conservative, in the mold of Justice Scalia, and fairly young (51). He can be expected to be a reliable vote on virtually every issue of importance to the Republican base, including national security, race, religion, criminal law, and state sovereignty.

The fact that Justice O'Connor was the first to resign changes the calculus considerably. While Chief Justice Rehnquist is an unflinching conservative, Justice O'Connor is more of a moderate-conservative, most conspicuously on such hot-button issues as abortion and affirmative action. She has been the swing vote on many cases which, as SCOTUSblog notes, could be overturned as the result of her retirement.

The White House may go with a far-right choice such as Judge Luttig or, perhaps more likely, Judge Edith Jones of the Fifth Circuit. (I say "more likely" because Judge Jones is as far to the right as Judge Luttig, but a woman which makes her more appealing as a replacement for Justice O'Connor. ) Another possibility is former Solicitor General Ted Olson, who argued Bush v. Gore but may be viewed as too old. Any of these three choices would be an aggressive move on the part of the President. A Luttig, Jones, or Olson nomination would almost surely lead to a Democratic filibuster and an extremely bitter partisan fight. Of course, the White House may be willing to take on that fight, figuring that they have little to lose.

Nevertheless, I think that the most likely choice is Judge Emilio Garza of the Fifth Circuit, who is also profiled on Slate.com. Judge Garza is quite conservative, though perhaps slightly less reliably so than Judge Luttig, Judge Jones, or Mr. Olson (note the emphasis on both "perhaps" and "slightly"). He'd be a sure vote to overturn Roe v. Wade and Casey's abortion holdings, but would be very difficult for the Democrats to oppose because he is a Latino. This would also make him a history-making candidate for President Bush, and would also shore up a constituency that's vitally important to future Republican success in the rapidly growing southwest.

Another Latino prospect, whose name is more often mentioned, is Attorney General Alberto Gonzales, profiled here on SCOTUS blog and here by Slate.com. The President's a big fan, but I don't think it will happen. Gonzales is a nominee who would give Democrats plenty of ammo because of his connection to memos regarding detainees and torture, while displeasing hardcore Republicans because he's not viewed as reliable on abortion or affirmative action. I also doubt that the President would nominate him so soon after his unexpectedly bruising confirmation battle as Attorney General . . . though he could be nominated for the Chief's slot if (a) the Chief doesn't retire for at least another year, and (b) a far-right female judge, like Judge Jones, is confirmed for O'Connor's slot.

If the Chief Does Step Down. . .

If there are two slots rather than just one to fill before the October 2005 term, then a dramatically different set of considerations comes into play. The Court will be losing both a reliably conservative vote in the Chief and its most frequent swing vote in Justice O'Connor.

While I have no prediction on whether the Chief will retire, if he does, I think Rick Hasen is right that the two new nominees will be sold as a package: "one, more conservative, to replace the Chief, and one more moderate (or perhaps simply of unknown qualities) to replace Justice O'Connor." Actually, I think that the second nominee would be "of unknown qualities" rather than a known moderate. It will be someone who satisfies the conservative base, without the sort of judicial record that will be easy for Democrats to attack.

Also, if there are two openings, at least one of the nominees is likely to be a woman. Decreasing the number of women on the Court, at a time when there are no additional openings on the horizon, is not a move that this politically savvy administration is likely to make. So while some might object to the somewhat gender-specific analysis that follows, I think that's realistically how the White House will assess things.

If I'm right on these two points, then one possibility is pairing a far-right nominee like Judge Luttig with a relatively unknown woman. The most likely nominee in the latter category would appear to be Judge Edith Brown Clement of the Fifth Circuit, profiled here on SCOTUSblog and on Slate.com. She's only been on the Fifth Circuit since 2001, and before that was a federal district judge in Louisiana. This gives her substantial experience as a federal judge but less of a record on hot-button cases than other potential nominees, making it more difficult for Democrats to find ammunition.

Another possibility is pairing a very conservative woman with a relatively unknown (or moderate) nominee, who could be either male or female. Here, the most likely prospects for the super-conservative slot are Judge Jones and Judge Janice Rogers Brown, just confirmed to the D.C. Circuit as part of the deal that avoided the so-called "nuclear option." She's African-American and as reliably conservative as Luttig, Jones and Olson, though somewhat more suspect in her intellectual caliber. Also, I think her being so recently confirmed after a messy fight makes her a less likely choice.

If an archconservative woman like Judge Jones is chosen, the President has a lot of options for the other slot, including Judge Garza, Judge Clement, or A.G. Gonzales. There's also been speculation about Judge J. Harvie Wilkinson and Michael McConnell, both profiled by Slate.com. Both are doubtful, if you ask me. They're both very smart but have opinions on some issues that will cause them to be perceived as unreliable by the Republican base, and opinions on other issues that make them relatively easy for Democrats to attack.

So if Judge Jones or another archconservative woman is appointed, who would she be paired with? My prediction is . . . Judge John Roberts of the D.C. Circuit, who's profiled by Slate.com. He's been on the bench 2003, long enough to have some federal appellate experience but not long enough to have many controversial opinions. Another possibility for that slot is Judge Garza, but his longer track record will make him easier for Democrats to oppose, particularly if he's paired with Judge Jones or another archconservative. Plus, picking two justices from the same circuit -- and the one from which the President hails to boot -- seems quite unlikely.

And the Winner Is . . .

With the caveat that I don't claim to have any more insight than the next law professor with a blog (and undoubtedly far less than some), here are my predictions:

If the C.J. stays
My pick - Judge Emilio Garza
Alternative - Judge Edith Jones

If the C.J. goes
My picks - Judges Jones and John Roberts
Alternatives - Judges Michael Luttig and Edith Brown Clement

Two qualifications: First, these are predictions, not the people I personally think would make the best justices. Second, this is more speculative than picking horses . . . and I've not even gotten into the question of whom the new Chief will be if C.J. Rehnquist retires.

Oh yeah, how will all this affect voting rights? Well, that's the subject for many a future post.

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Moritz College of Law The Ohio State University