What Comes After Election 2020? Three Things to Know in the Coming Days

By Dean Michael Waterstone

Last night, Loyola Law School held a panel on “Election 2020: What Comes Next?” I was joined by incredible colleagues, Professor Jessica Levinson and Professor Justin Levitt, both national experts in the election law and the law of democracy. Our combined goal was to ease some of the anxiety created by this year’s election circumstances through education and awareness, specifically helping everyone understand what can unfold in the coming days.

Three important takeaways:

• This election is likely to be decided by the voters, not the courts – regardless of political preference, many are comparing this or having flashbacks to 2000 and Bush v. Gore. That situation was different - it involved determinations of hundreds of votes. Nothing presented thus far gets anything close to that. There will be litigation, but none is likely to be close enough or present an opportunity for courts to decide the election. And not all lawsuits can or will be effective. In a phrase which merits trademarking, Professor Levitt explained that sometimes lawsuits can be “nothing more than tweets with filing fees”.
• The administration of elections is messy and not well understood – even national elections are not administered in a national way. Elections are administered by state and local authorities, and ultimately are run by volunteers. This is a crucial, yet unheralded part of American Democracy. (and I am so proud of over 100 members of our community who served as polling place workers this election). Although some paint this as a cause of concern, and we should fund election administration more, it is also a source of strength. There is not central system to penetrate or hack, and our community willingly takes on the responsibility of counting all of our votes. 
• Our country is bitterly divided – and this manifests itself in everything, including how we view our election system. This is troubling for many reasons, as one of the things that undermines and makes our system work is that it is viewed as legitimate. Both panelists spoke to a renewed need for civics engagement at all levels. One of the reasons people focus, perhaps overmuch, on the presidential election is we expect our leader to do all of the hard work for us. We have to do more even more than vote – we have to work in our own communities to create whatever change we want to see. 

At a time when people are looking for answers to questions about the election process and what comes next, this was an enlightening and entertaining conversation with two true experts in the field. I hope you enjoy it as much as I did; please listen to the full version here.

Supreme Court: With McDonnell Opinion, Ex-Governor Will Get Another Day in Court

By Professor Jessica Levinson

Today the Supreme Court unanimously tossed out the conviction of former Virginia Governor McDonnell. While Gov. McDonnell's behavior was offensive, it may not be criminal. Gov. McDonnell may still see the inside of a prison cell, but a jury will have to make that determination based on the Court's interpretation of the federal bribery laws.

The court found that "our concern is not with tawdry tales of Ferraris, Rolexes, and ball gowns. It is instead with the broader legal implications of the Government’s boundless interpretation of the federal bribery statute."

Gov. McDonnell was convicted under a statute which required that individuals make an "official act." The Court narrowed the meaning of that law, finding that merely "[s]etting up a meeting, talking to another official, or organizing an event—without more—does not fit that definition of 'official act.'" Chief Justice Roberts, writing for the Court, held that a broader interpretation of the term "official act" would create constitutional problems. It would also criminalize politics as usual.

Court to decide principle of one person, one vote

By Professor Jessica Levinson
This is an excerpt from an op-ed published in the Sacramento Bee

A priest, a rabbi and a minister walk into a bar. They each live in a different state Senate district with 100,000 people in each district. There are 80,000 voters in the priest’s district, 50,000 in the rabbi’s district and 20,000 in the minister’s district.

This is not the beginning of a joke, but rather the basis of one of the most important election law cases to hit the U.S. Supreme Court in years.

If two candidates run for state Senate in each district, the priest will have to convince 40,001 of his friends to vote for his preferred candidate. The rabbi, by contrast, will only have to sway 25,001 voters. And the minister has the easiest task; he must only persuade 10,001 voters in order for his preferred candidate to win the election. Put another way, in the priest’s district it takes many more voters to elect the candidate of his choice.

Read the full article here.

Citizens redistricting panels survive test

By Professor Jessica Levinson

This op-ed originally appeared in the Sacramento Bee. Levinson has also provided related commentary to the San Francisco Chronicle, Los Angeles Times, AZ Central and NBC 4-Los Angeles.

The U.S. Supreme Court just saved independent redistricting commissions, but a political earthquake could be coming next term.

Writing for a 5-4 majority, Justice Ruth Bader Ginsburg on Monday upheld the ability of citizens commissions to draw congressional district lines. At issue was the elections clause of the U.S. Constitution, which provides that the “Legislature” in each state shall prescribe the “times, places, and manner of holding elections for senators and representatives.”

The majority essentially found that the word “Legislature” includes not just elected lawmakers but also citizens acting in a legislative capacity, for instance when exercising their rights under initiatives or referendums to enact or repeal laws that affect congressional elections.

Had the court ruled the other way, it could have thrown the validity into question of other numerous other laws passed via direct democracy that affect congressional elections – open primaries, voter identification requirements, vote by mail provisions and early voting. In addition, California’s redistricting commission, likely legally indistinguishable from Arizona’s commission, now appears safe from this type of legal challenge. This ruling maintains the status quo throughout the country.

Read the complete op-ed.

Judging the Role of Money in Judicial Elections

By Professor Jessica A. Levinson

This op-ed originally appeared in the Los Angeles Daily Journal.

A judicial candidate, a potential donor and a lawyer walk into a bar. If that bar is located in Florida or one of dozens of states that prohibit judicial candidates from directly soliciting campaign contributions, then that candidate cannot ask the potential donor for money. However, the candidate can form a campaign committee, choose who runs it, look at the donor list, and call those donors to thank them.

Tuesday, the U.S. Supreme Court is hearing arguments in Williams-Yulee v. Florida Bar to consider whether Florida’s prohibition on judicial candidates from making direct campaign solicitations is constitutional. This case is not about whether or how much money judicial candidates can raise, but rather concerns whether they can directly ask for that money.

Advocates of these types of prohibitions contend that they promote the integrity of judges and confidence in the courts because it is problematic and frankly downright unseemly for judicial candidates to directly ask donors for campaign cash.

Let’s be honest, who do we think will give those campaign contributions? Short answer: generally people who may appear before that candidate. Hence a prohibition on the direct solicitation of contributions arguably protects the impartiality of the judiciary and guards against donors being able to exert an undue influence over judges. Advocates therefore claim that the prohibition reduces corruption or the appearance of corruption that can occur when a judicial candidate asks a potential donor for money.

Opponents of the prohibition claim such prohibitions infringe on the First Amendment without properly serving to prevent undue influence or corruption. It is true that the prohibition still allows potentially problematic behavior because judicial candidates still know who gives to their campaigns and can thank those donors. This is an argument that the restriction is not properly tailored to serve its goals. Opponents do not contend the restriction should be broader and prohibit more behavior, but that other options, such as contribution limits or recusal rules, could serve the same governmental interests without the burden on First Amendment rights.

The Critical Federalism Issue at the Heart of the Alabama Redistricting Cases

By Professor Justin Levitt

This post originally appeared on the Election Law Blog.

Justin here, with a thought on last week’s oral argument in two consolidated cases about Alabama’s redistricting process. There’s an issue lurking at the heart of the dispute that may be difficult to spot in the transcript.

The cases concern the rationale behind Alabama’s last state legislative redistricting plan. Press headlines pitched the issue as a tussle between racial reasons and political ones. Such cases can indeed be quite messy … but for better or worse, this dispute is not one of them. Alabama said that its districts were driven by the Voting Rights Act, and not by partisan politics. And by the end of the argument, most of the Court seemed to understand that any deeper partisan impulse was achieved through race-based means. (Look at LULAC — or Judge Kozinski’s Garza opinion — for an explanation of why using race to achieve partisan ends is still race-based action.)

At least some Justices also seemed to understand that Alabama’s districts were not actually driven by the Voting Rights Act. As I’ve written, Alabama instead deployed a poor essentialist facsimile. The Voting Rights Act is a nuanced statute that requires attention to race only after careful consideration of on-the-ground political reality. Alabama cut corners, pegging its districts to raw demographic targets without the necessary homework. Whatever Alabama was following wasn’t the statute on the books.

Which leads to the intriguing buried issue. Why manufacture a false façade for a federal law? Perhaps it was honest mistake about what the statute requires. Perhaps it was an attempt to overpack many African-American voters into a few hyperconcentrated districts, or to change the representative face of the Democratic party in Alabama. Or perhaps the ostensible federal mandate offered the prospect of a convenient path around an inconvenient state structure.

5 Things You Should Know About the California Election

By Professor Jessica Levinson

This post originally appeared on the Huffington Post.

Election day is upon us. What should California voters know?

1. Jerry Brown will be re-elected as the governor.

Drought-stricken California could be hit with torrential rain. Wildfires could sweep the state. A blue moon could shine for three nights in a row. Jerry Brown will still be re-elected.

Do you want to know why? First, because he is Jerry Brown. In California a synonym for "Jerry Brown" is "someone who holds elected office." Brown has held nearly every elected office in the state of California. We know him. We're comfortable enough with him. We're going to re-elect him (again).

Second, because he is running against that guy who oversaw the Troubled Asset Relief Program (TARP). Yes, that's right. You don't even know his name. It is Neel Kashkari, by the way. He is apparently running to see how badly he will lose against the once, current, and future governor. He had handed out gas cards to get people to campaign events, spent a week living as a homeless person, and run a television commercial with a drowning child. Translation? He is going to lose.

2. Gavin Newsom will be re-elected as the lieutenant governor

You know Gavin Newsom, right? He is the former mayor of San Francisco who ordered the city clerk to issue marriage license to same-sex couples back when that violated state law. Still don't know him? He is the one with the slicked back hair who had an affair with the wife of his former deputy chief of staff and campaign manager. I thought that would ring a bell.

Newsom is running against Ron Nehring. Newsom is going to a have "party preference: Democrat" next to his name, while Nehring will have "party preference: Republican" next to his. Since this is California, and Newsom is the incumbent who hasn't done anything disastrous (or otherwise), that means Newsom will win.

A Step Forward to Slay the Gerrymander

By Professor Justin Levitt

In the early days of the Republic, Patrick Henry and James Madison were bitter political opponents. Henry thought that the new Constitution jeopardized states’ rights and individual liberties, and blamed Madison. When Madison sought a seat in the new Congress he had created, Henry sought revenge. He reportedly convinced Virginia’s legislature to draw their very first congressional districts to hurt Madison at the polls.

The burst of partisan pique would feel quite familiar today. For 200 years, American politicians have drawn election district lines to punish their enemies, favor their friends, and lock in their own job security at the voters’ expense. When incumbents gerrymander districts, the public’s partisan preferences are distorted, and communities are carved into electoral bits, to give those in power the best chance of staying in power. We are the only industrialized democracy that permits this conflict of interest.

And New York voters have a rare chance to lead the way out.

Proposal 1 on the November ballot would change the way that New York draws district lines. But more important, it could also change the model for change, across the country.

What politicians really think about Citizens United

By Professor Justin Levitt

This op-ed originally appeared in the Los Angeles Daily News.

The U.S. Senate just debated a constitutional amendment to overturn the Supreme Court’s Citizens United decision about money in politics.

That’s remarkable. We have amended the constitution only 27 times in our country’s history. If a substantial portion of Congress thinks that it is time for number 28, a lot of Americans must be pretty upset about something.

But what has them so upset? The day before the Citizens United decision, Bill Gates had the right to spend as much as he wished urging Americans to vote against Senator Windbag. Corporations were barred from delivering the “vote against Windbag” message. But they could spend as much as they wished urging Americans to understand that Windbag hates puppies, God, apple pie and Betty White.

New 'Jungle Primary' System Shakes up California Election

By Professor Jessica Levinson

In what will be a low-turn out, but high-impact election, voters will head to the polls to weigh in on a variety of state and local races. In the race for governor, the main question is which of two Republicans will lose to Gov. Jerry Brown in November. The party establishment is pulling for moderate Neel Kashkari while conservatives and tea party members have demonstrated grassroots support for Assemblyman Tim Donnelly.

This is the first set of statewide elections run under California's new top two, open primary law. Under the so-called "jungle primary" law, any voter can vote for any candidate in the primary election, regardless of party affiliation. Then a runoff is held between the top two vote getters, who are sometimes members of the same party. The law could shake up a number of races, including the Secretary of State's race. On the federal level, many eyes are on the race to replace long-serving Congressman Henry Waxman. In a race with over a dozen candidates, and a number of familiar faces, it is very difficult to predict who will live to fight another day in the November runoff.

In Los Angeles voters will weigh in on a number of low visibility, but powerful offices. For the first time in almost 100 years there is an election for LA County Sheriff in which an incumbent is not on the ballot and an outsider may be victorious. Each candidate is running as a reformer who can clean up the scandal-plagued department.

Thanks to term limits two of the five Los Angeles County Supervisors seats are now open. One of these race brings three competitive candidates vying for this powerful position with control over vast sums of country resources.

Despite all of this, few registered voters, let alone eligible voters, will show up to the polls. Those who do show up will have a significant say in determining the makeup of federal, state and local government.

Follow Professor Levinson on Twitter @LevinsonJessica or via her blog, PoLawTics.

The Drunkard's Search for Money in Politics

By Professor Justin Levitt

Late at night, a good Samaritan happens upon an intoxicated man crawling under a streetlight, studying the ground.  The drunkard says that he is looking for his keys, and our helpful bystander joins the search.  After a few minutes, the helper asks, “Are you sure this is where you dropped them?” “No,” says the drunk, “I probably dropped them by the bar down the road. But the light’s much better here.”

The phenomenon of the drunkard’s search, often attributed to Abraham Kaplan, afflicts much empirical inquiry.  Researchers seeking quantitative rigor too often head for the available data, fire up STATA, and only as an afterthought offer a few generic caveats about the limitations of the data for the topic at hand.  

Campaign finance analysis is not immune from this problem. In reading some recent studies over the weekend, I noticed a few recurring lapses.

Consider the evaluation of electoral spending by entities other than candidates and parties: “outside” spending, for short. Frequently, studies look to data from the Federal Election Commission (and equivalent state sources) to track the rise of independent expenditures since blockbuster Supreme Court cases like Citizens United, which allowed corporations (and, by logical extension, other non-affiliated groups) to engage in such activity without limits.  

A Broken Election System Becomes a Teenager

By 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.

Voter ID: The Diversity in the Details

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.

Much Ado About McCutcheon

By 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.

Symposium: Aggregate Limits and the Fight over Frame

By 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.

Of contributions and expenditures and the land in between

By 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.”

Welcome to the super PAC era

By 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.

Of course those giving money to outside groups are generally those who have a financial interest in what happens in City Hall. For instance, donors include real estate developers, labor unions, members of the entertainment industry, and lawyers and law firms. This set up raises a host of problems including corruption, the appearance of corruption, undue access and preferential treatment.

Because of the Supreme Court's misguided interpretation of limits on campaign contributions and expenditures, there is little hope, at least in the short term, of limiting how much can be given to and spent by outside groups. The best way to regulate the influence of money in politics is to advocate for robust campaign disclosure.

Campaign Finance's Not-So-Final Exam

By 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.

With voting, there's no place like home

By 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.

One 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 or allegedly vacant lots.

They're aliiiiive! (Really. They're alive.)

By 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.

But 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.

Second, bad matching. These reports often rely on comparing names and birthdates. But in any large pool of records, it's surprisingly common for two different people to share the same date of birth. Statistics prove that if you've got 460 people named "Michael Myers" in your population, it's virtually guaranteed that two will share the same date of birth. Which means that in millions of computer records, Michael Myers, dearly departed, may not be the Michael Myers casting a ballot. Florida governor Rick Scott was actually purged from the rolls in 2006 by such an error.

Third, bad timing. Though the dead rarely vote, voters do sometimes pass away. There have been reports of voters casting early votes or absentee ballots, and then shuffling off this mortal coil.

Take away the mistakes and misinterpretations, and you take away most of the howling behind the dead voter allegations. When real researchers spend real time following up on the claims, they leave at most a handful of oddities unanswered, almost exclusively in the absentee system. An enterprising reporter dug deep into the St. Louis -- St. Louis! -- rolls in 2007, and every single suggestion of gravesite voting evaporated. Sometimes the follow-up dispels the ghosts entirely.

There is more legitimacy to the notion that registered voters remain on the rolls after they die -- not that they cast ballots, but that the records linger. The volume of deceased registrants is also often overblown, for all the reasons above, but the leftover records do end up amounting to more than a handful. When election officials do their job well, these records are removed from the rolls, slowly and deliberately and in the off-season, with safeguards to ensure that no legitimate voter is caught up in the sweep.

That sort of careful list maintenance is a far cry from the hurried and harried last-minute purges urged by the purveyors of dead voter tales. Overbroad actions in the waning days of an cycle can only undermine the integrity of a election by jeopardizing the rights of real, live, eligible voters. And that is what's really scary about the dead voter stories of late fall.