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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
NOW AVAILABLE from
Barnes and Noble
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Category Archives: Voting Rights Act
Justin Levitt has posted this draft on SSRN (Yale Law Journal Online). Here is the abstract:
In addition to its remarkable substantive impact, Section 5 of the Voting Rights Act is a provision of enormous expressive and historical importance. But the extent to which the statute is also a symbol has some unrecognized downsides. In the current Shelby County litigation, reviewing a challenge to section 5, much of the argument seems to revolve around a simulacrum of section 5, rather than the statute itself. This simulacrum is much like an editorial cartoonist’s rendering of a political figure, in which particular features take on exaggerated salience. Many elements of the simulacrum have at least the ring of truth, which helps to explain the staying power of the image. But though the cartoon version of the preclearance regime resembles the original, the exaggerated features—including preconceived notions of the obsolescence of the regime’s primary operating system, the extent to which it fosters racial essentialism, and its place within our federalist structure—distort rather than clarify our understanding of the legality of the portions of the Voting Rights Act at issue. This short Essay investigates some of the more striking elements of the section 5 simulacrum, contrasting the cartoon vision of section 5 with the more fully contextualized operation of the actual statute.
Joey Fishkin has posted this draft on SSRN (Yale L.J. Online). Here is the abstract:
The plaintiffs in Shelby County v. Holder argue that section 5 of the Voting Rights Act should be struck down because it offends the “equal dignity” of the covered states — an argument the Court appeared to credit in its last brush with section 5 in NAMUDNO. This Essay, written in advance of the decision in Shelby County, critically examines this equal dignity of the states argument and situates it in a larger context. Americans have been fighting for 150 years, since the Civil War and Reconstruction, about the structural implications of the events of 1861–70 for the sovereignty, dignity, and equality of the states — and of the Southern states in particular. The equal dignity of the states argument thus stakes a claim on the meaning of the Civil War and Reconstruction in American historical memory, a claim whose implications are problematic and profound,
The Lawyers’ Committee has posted the Supreme Court documents:
Supreme Court Documents:
Click here for Texas’ Jurisdictional Statement.
Click here for the Lawyers’ Committee’s Motion to Affirm.
Click here for the Justice Department’s Motion to Affirm.
Click here for another intervenor’s Motion to Affirm.
Chris Elmendorf and Doug Spencer have posted this draft on SSRN, and it is potentially relevant to the Shelby County Voting Rights Act case pending before the Supreme Court. Here is the abstract:
The geography of voter discrimination—that is, the tendency of voters within different geographic units to discriminate against minority candidates on the basis of the candidate’s race—is of central importance to the adjudication of claims under Section 2 of the Voting Rights Act, and to the constitutionality of Section 5. To date, however, efforts to create fine-grained estimates of the geography of voter discrimination have been hindered by the modest sample sizes of national surveys. Using multilevel regression with post-stratification, we create estimates of anti-black stereotyping at the state and county level, and we show how these estimates can be used to evaluate (or redesign) the coverage formula for Section 5 of the Voting Rights Act, and to implement Section 2. Among our principal conclusions is that the coverage formula for Section 5 is remarkably well tailored to the geography of anti-black prejudice. If the Supreme Court invalidates the coverage formula in Shelby County v. Holder, Congress could re-enact a substantially similar formula on the basis of our findings. Note to readers: due to some delays in obtaining data, we are not able to include county-level results in this draft. We are posting this incomplete draft because of the timeliness of the state-level results for Shelby County and potential congressional responses.
Richard Wolf reports for USA Today on Shelby County and Fisher.
An important election survey that reveals patterns in voting and registration is the Census Bureau’s Current Population Survey November Voting and Registration Supplement, or CPS for short. The 2012 CPS reveals insights to major stories about the election divined from the exit polls: the changing face of the electorate and the role of young people in determining the outcome of the presidential election. As I suggested previously, the increasing diversity of the 2012 electorate was a partially a turnout story, with non-Hispanic Whites modestly withdrawing from the electorate. The CPS further documents how it is also a story of the inevitable trend of increasing diversity of the country. Perhaps the most revealing new finding is a dramatic decrease in the youth vote, which has important ramifications for future elections.
If the Supreme Court holds Section 5 of the VRA unconstitutional by the end of this Term, or cuts back substantially on Section 5′s scope, an outpouring of policy and political energy will undoubtedly burst forth to suggest what kind of legislative response, if any, is warranted. One comprehensive collection of recommendations and suggestions already exists about the direction voting rights policy might most effectively take, from leading academic experts in law and political science on the VRA, in this book, The Future of the Voting Rights Act, for which I was one of the editors. Published by the Russell Sage Foundation, the book can be found here.
Ironically, the book was designed to inform the legislative policy process when Section 5 expired in 2007, but Congress moved the process up to 2006. The book originally came out in 2006 but too late to influence that expedited process. If the Court does invalidate or cut back on Section 5, however, this book will provide a comprehensive starting point for ideas about how Congress might most effectively respond to modernize voting rights policy.
Here is the (modified, updated) description of the book that the Russell Sage Foundation originally published:
The Voting Rights Act (VRA) stands among the great achievements of American democracy. In The Future of the Voting Rights Act, Richard Pildes, Rodolfo de la Garza, Sharyn O’Halloran, and others bring together leading historians, political scientists, and legal scholars to assess the role a re-designed Section 5, or other voting rights legislation, should play in America’s future.
The contributors offer varied perspectives on the most effective future for voting rights law and policy. Rodolfo de la Garza and Louis DeSipio explore the VRA’s limited focus thus far on the situation of Hispanic residents and citizens, whose interests with respect to voting rights differ in insufficiently appreciated ways from those of African Americans (Laughlin McDonald explores similar issues with respect to Native American voters). Sharyn O’Halloran and David Epstein provide extensive data showing that white voters are more wiling than in the past to vote for African-American candidates and to forge interracial coalitions that successfully elect African-American candidates. Richard Pildes explores the difficulties of updating policies to protect vulnerable voters designed many decades ago to today’s different circumstances, and asks whether minority voters might be better off if voting rights policy now were to better facilitate the formation of winning political coalitions across racial and ethnic lines, rather than focusing exclusively on the creation of “safe” districts that minority voters can dominate.
Nate Persily suggests approaches that would update Section 5 from within, by re-shaping it to fit current circumstances, and approaches that would abandon Section 5′s regionally-targeted philosophy for more aggressive, nationwide protections of voting rights. Spencer Overton and Michael McDonald grapple with crafting an updated coverage formula that identifies those areas that remain exceptionally problematic with respect to their treatment of minority voters. Heather Gerken seeks to enlist greater citizen participation on how to determine areas of the country that are especially problematic. Samuel Issacharoff questions whether Section 5 remains necessary, citing the now substantial presence of blacks in legislative positions and the increasingly partisan enforcement of the law by the Department of Justice (DOJ). Rick Hasen explores the constitutional issues that will continue to affect the options for congressional action.
Examining the role that Section 5 or alternative legislation might play in maintaining a healthy democracy is vital. Combining historical perspective, legal scholarship, and the insight of the social sciences, The Future of the Voting Rights Act is a crucial read for anyone interested in one of this year’s most important constitutional issues before the Supreme Court, for any policy debates that might follow in the wake of the Court’s decision, and in the future of civil rights in America.
EDITORS: RICHARD H. PILDES is Sudler Family Professor of Constitutional Law at New York University School of Law.
RODOLFO O. DE LA GARZA is faculty fellow in the Department of Political Science and director of the Project on Immigration, Ethnicity, and Race at the Institute for Social and Economic Research and Policy at Columbia University.
SHARYN O’HALLORAN is the George Blumenthal Professor of Politics and professor of international and public affairs at Columbia University.
DAVID L. EPSTEIN was formerly a professor of political science at Columbia University.
CONTRIBUTORS: Rodolfo O. de la Garza, Sharyn O’Halloran, Richard H. Pildes, Stephen Ansolabehere, Thomas Brunell, Bruce E. Cain, Guy-Uriel E. Charles, Louis DeSipio, Luis Fuentes-Rohwer, Heather K. Gerken, Bernard Grofman, Richard L. Hasen, Samuel Issacharoff, Karin MacDonald, Peyton McCrary, Laughlin McDonald, Michael P. McDonald, Spencer Overton, Nathaniel Persily, Christopher Seaman, David L. Epstein and Richard Valelly.
LAT: “Los Angeles County officials rejected a bid Tuesday from several Santa Clarita Valley school districts and a water district hoping to consolidate elections and avoid the kind of voting rights lawsuits that other local governments have been hit with….The districts commissioned a joint demographic study that found moving to by-district elections would not necessarily increase minority voting power or protect them against voting rights lawsuits. So instead they requested that the county allow them to consolidate their elections with the statewide general election in a bid to increase voter participation in their elections….But officials with the county registrar-recorder said allowing the districts to move their elections might overload the county’s voting system, which has limited room on each ballot. According to the office, large portions of the county are already at 75% capacity in even-year November elections.”
The following press release arrived via email:
New York, N.Y.–“Home of the Brave,” a powerful, award-winning 2004 documentary about murdered civil rights activist Viola Liuzzo will be released digitally as the U.S. Supreme Court considers overturning critical aspects of the Voting Rights Act of 1965, the ground-breaking legislation that outlaws discriminatory voting practices. SundanceNow and New Video have scheduled widespread digital distribution with dates that overlap with this significant Supreme Court decision being made in June.
“The most potent weapon in fighting discrimination at the ballot box is before the Supreme Court in a case that weighs the nation’s enormous progress in civil rights against the need to continue to protect minority voters,” says Stockard Channing, narrator of “Home of the Brave.” “Viola Liuzzo’s story needs to be part of America’s social consciousness for many reasons, but is especially critical now, as the Supreme Court justices make their decision this June.”
The lawsuit from Shelby County, Ala. addresses Section 5 of the Voting Rights Act and says that federal oversight of elections is no longer needed. Section 5 requires 16 states with a history of racial discrimination in voting, primarily in the South, to clear election-related changes with the federal government. Section 5 is widely regarded as the most effective provision of the country’s most important civil rights law.
“She wanted equal rights for everyone, no matter what the cost!” 14-year-old Tommy Liuzzo, 1965
Liuzzo, the 39-year-old wife of a Detroit Teamster and mother of five, joined thousands of civil rights protesters in Selma, Ala. for the Voting Rights March in 1965, only to be gunned down in a drive-by shooting on a deserted highway as she shuttled marchers back and forth to the airport. The murderers were members of the Ku Klux Klan, one of whom, Gary Thomas Rowe, was an FBI informant. Despite a slanderous investigation headed by J. Edgar Hoover, Liuzzo’s death – the only white woman killed during this long struggle – became the catalyst for President Lyndon Johnson’s push to pass the Voting Rights Act of 1965.
Many Americans have never heard Liuzzo’s name or story, making “Home of the Brave” extremely timely and relevant. Amazon Instant Video, PlayStation, Xbox Video, Vudu, YouTube Rentals and SundanceNow will release “Home of the Brave” on May 7. The documentary’s release will expand to include Netflix, SnagFilms and Hulu on June 7. The educational distributor Bullfrog Films, Inc., a long-time advocate for the film, is actively promoting the documentary to their broad list of libraries and universities.
“The entire struggle of that era was about the Voting Rights Acts, says Mary Lilleboe, daughter of Viola Liuzzo. “American citizens have and had the Constitutional right to vote. All the bloodshed, tears and lives lost were in a struggle to get the federal government to ensure this right was not tampered with by anyone in any way. This movie is about the struggle to exercise our right, the cost to guarantee it and the people who paid the price. The very attempt to repeal this legislation forewarns of the danger in doing so and tears at the hearts of those who lived through it.”
“Home of the Brave” premiered in competition at Sundance in 2004. The film was distributed theatrically by Emerging Pictures and on television by Court TV. Image Entertainment handled DVD sales and Bullfrog Films distributes to the educational market, including schools and museums. The critically acclaimed documentary was short-listed for the 2005 Academy Awards. The film won the Chicago International Film Festival Silver Lion Award as well as the Social Justice Award at the Santa Barbara International Film Festival. It also received a Writer’s Guild nomination for Best Documentary Screenplay, Best Documentary Award at the Port Townsend Film Festival, Best Feature Documentary nomination for the 2004 International Documentary Association Awards, the Joan Phillips-Sandy Award for excellent film with social message in Maine and 1st runner-up for the Audience Choice at the Cleveland International Film Festival.
Sundance and iTunes has “Home of the Brave” available for pre-orders:
AP: “America’s blacks voted at a higher rate than other minority groups in 2012 and by most measures surpassed the white turnout for the first time, reflecting a deeply polarized presidential election in which blacks strongly supported Barack Obama while many whites stayed home.”
CLC: “This week more jurisdictions moved forward with bailouts from the preclearance provisions of the Voting Rights Act as the Supreme Court weighs a challenge to the constitutionality of those provisions. Yesterday, a three-judge court in Washington, DC approved a final consent decree exempting the City of Wheatland, California from the Act’s preclearance provisions. On the same day, the Justice Department announced that it had reached agreement on a bailout with the city of Falls Church, Virginia (along with the Falls Church City Public School District) and submitted a proposed consent decree for approval to a three-judge court in the U.S. District Court for the District of Columbia.”
Gary May has written this WaPo oped. It begins: “In the debate over the future of the Voting Rights Act , it sometimes becomes apparent that certain members of the Supreme Court are either oblivious to our nation’s recent history or willfully ignore it. Justice Antonin Scalia made this abundantly clear in his comments during the Feb. 27 oral argument in Shelby County v. Holder , statements that he repeated in a speech on April 15.”
Anchorage Daily News: “The Alaska Redistricting Board has gone once again to the Alaska Supreme Court, this time asking the justices to clarify whether an earlier ruling requires it to redraw all of Alaska’s legislative districts from scratch.”
MORE: “Torgerson, a former state senator from Kasilof, said the board was waiting out a decision by the U.S. Supreme Court in a case brought by Shelby County, Ala., challenging a section of the U.S. Voting Rights Act. The case could affect Alaska because like Shelby County, the entire state of Alaska must get authorization from the U.S. Justice Department before making any changes to its voting system, including redistricting.”
Project Vote release on a particularly controversial provision in Florida’s election bill.
News from Alabama.
AFJ blogs on the Justice’s recent statements about the Voting Rights Act.
Desiline Victor, the 102-year-old North Miami voter who became a symbol of Florida’s elections woes, could again find it tough to cast a ballot now that the Republican-controlled state Senate voted Tuesday to keep a crack down on foreign-language interpreters at the polls.
The Senate maintained the last-minute measure on what appeared to be a party-line voice vote while debating a bill designed to reverse the effects of an election law that helped create long lines and suppress the vote in 2012.
Two questions: (1) This is the new outreach to Latino voters? (2) This is the response to make lines shorter at the polls in Florida?
I expect a successful federal lawsuit against such a provision if it gets included in a new Florida election law.
Supreme Court Justice Antonin Scalia told university students that key provisions of the Voting Rights Act had evolved from an emergency response to racial discrimination in 1965 to an “embedded” form of “racial preferment” that would likely continue indefinitely unless the court acts to end them.
Justice Scalia, speaking Monday night at the University of California Washington Center, elaborated on remarks he made in February during Supreme Court arguments over the act’s Section 5, which requires states and localities that historically discriminated against minority voters to obtain federal approval to change election procedures.
Section 5 functions as a racial entitlement because the federal government doesn’t take a similar interest in protecting the voting rights of white people from racial discrimination, Justice Scalia said.
The remarks are not much different from what Justice Scalia said at oral argument in the Shelby County case, but I find it pretty remarkable that he’d make these comments off the bench while Shelby County remains pending.
UPDATE: It gets worse, as Justice Scalia appears to tip his hand on how he’s voting in an upcoming case.
You can find links to the other witness testimony at the House hearing at this link.
UPDATE: Watch this exchange between Rep. Gowdy and Prof. Bagenstos about the South Carolina preclearance process and whether career attorneys were overruled in the case.
Gary May excerpt at Salon of forthcoming book, Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy.
Ross Ramsey for the Texas Tribune:
Greg Abbott is selling a redistricting nostrum, telling Texas legislators they could cut their legal risks by adopting new political maps right away.
It is a hard sell. Lawmakers are getting along so well they practically break out into song every day. Abbott, the state’s attorney general, is offering them one of the most reliably divisive issues in existence, saying they could get themselves — and him, too, by the way — out of a lot of gnarly legal fights by endorsing maps drawn by federal judges instead of defending their own. They’re balking.
The petition garnered a lot of attention, including in a Sidebar column from Adam Liptak, no doubt it because it was backed by Edward Blum, who successfully brought the Fisher affirmative action case and Shelby County and NAMUDNO voting rights cases to the Court.
But I had been skeptical the Court would take the case, A ruling that jurisdictions could not count “all persons” for purposes of redistricting and must exclude non-citizens would have called into question thousands of districting plans across the country, and it was a theory which seemed to be in direct conflict with the constitutional text.
Ellen Katz has written this important new article for Columbia Law Review’s Sidebar, the first in a series of essays on election law issues in the 2012 election. From the introduction:
Undeniably, things have changed. Opportunities for minority political participation in places like South Carolina have evolved since Congress first enacted the VRA. Supporters of the VRA readily acknowledge as much but argue that this evolution is less developed, more fragile, and more dependent on section 5’s continued operation than South Carolina and others siding with the petitioners in Shelby County maintain.5 The pending case accordingly presents the Court with competing narratives, one of a problem solved and, hence, a statute that has run its course, and another depicting a vulnerable work in progress that requires the sustained attention the VRA provides.
There is, nevertheless, an additional narrative the Justices should consider when they evaluate how far places subject to the VRA’s regional provisions have evolved. This narrative posits that section 5 is far from obsolete and operates not only as a restraint on the ill-intentioned, but also as an affirmative tool of governance. On this account, one of the VRA’s most critical, albeit least appreciated, functions is the way in which it helps public officials navigate complex contemporary questions concerning equality of opportunity in the political process.6
A good example of the VRA’s role in this regard is found in the recent dispute over voter identification (ID) in South Carolina. The “evolutionary process”7 through which voter ID came to be approved in South Carolina shows section 5 operating not only as a constraint, but also as a constructive mechanism for dispute resolution. In this capacity, section 5 helped produce a voter ID measure which, as one reviewing judge explained, “accomplishes South Carolina’s important objectives, while protecting every individual’s right to vote and . . . addressing the significant concerns” about the measure’s impact on minority voters.8
Hope Yen has written this extensive report for AP, which begins:
Has the nation lived down its history of racism and should the law become colorblind?
Addressing two pivotal legal issues, one on affirmative action and a second on voting rights, a divided Supreme Court is poised to answer those questions.
In one case, the issue is whether race preferences in university admissions undermine equal opportunity more than they promote the benefits of racial diversity. Just this past week, justices signaled their interest in scrutinizing affirmative action very intensely, expanding their review as well to a Michigan law passed by voters that bars “preferential treatment” to students based on race. Separately in a second case, the court must decide whether race relations — in the South, particularly — have improved to the point that federal laws protecting minority voting rights are no longer warranted.
The questions are apt as the United States closes in on a demographic tipping point, when nonwhites will become a majority of the nation’s population for the first time. That dramatic shift is expected to be reached within the next generation, and how the Supreme Court rules could go a long way in determining what civil rights and equality mean in an America long divided by race.
Reading it gives no inkling of turmoil in the voting section.
Update: Mother Jones: The Civil Rights Division is Kicking Butt, Says the Civil Rights Division
Let me begin with the caveat that it is always hazardous to predict what the Supreme Court is going to do from reports at oral argument (See, e.g., the health care case). That said, I want to explore what seems most likely to happen at this point with the Supreme Court’s term, and what it would mean. My best guess today is that Justice Kennedy will be in slim majorities reaching the following results: the Court will not recognize a right to same sex marriage in the California Proposition 8 case, although the means of doing so will likely leave a lower court ruling enjoining California from enforcing Proposition 8 standing; that the Court will strike down section 3 of the Defense of Marriage Act as an unconstitutional affront to traditional state power to define and regulate marriage; that the Court will hold that the coverage formula of section 4 of the Voting Rights Act is an unconstitutional affront to state sovereignty, leaving open the possibility that the Congress could rework a new coverage formula more closely tied to current evidence of intentional racial discrimination in the sates (something Congress will never do); and the Court will not issue a far-reaching decision in the University of Texas affirmative action case, leaving open some issues to be addressed in future cases in future terms, such as the Michigan case the Court just agreed to hear.
If this is the end result of the term, parts will make conservatives mad (such as striking down DOMA, and making the federal government pay same sex benefits to those whose same-sex marriages are recognized by their state) and parts will make liberals mad (such as effectively striking down a crown jewel of the civil rights movement, and failing to go all the way and recognize a constitutional right to same-sex marriage).
Justice Kennedy will probably feel pretty good about a term like this, and in the past he hasn’t minded being alone, in the middle, frustrating his colleagues on the left and the right. I think of his opinion in the partisan gerrymandering case of Veith v. Jubelirer, where his four conservative colleagues took the position that courts could not hear partisan gerrymandering claims (because they presented political questions with unmanageable judicial standards) and his four liberal colleagues offered a host of standards for reining in partisan gerrymandering, parading them in beauty pageant fashion for Justice Kennedy. Justice Kennedy took the position that the cases could be heard, but so far no one had come up with any standard to police the constitutionality of such gerrymandering. It was a somewhat inscrutable opinion—keeping the issue open to percolate some more and saying plaintiffs can come to court with these claims which they would continue to lose, until Justice Kennedy found a standard he liked (he still hasn’t).
So Justice Kennedy is fine with 4-1-4 splits on the Court (although some things he might do on standing could bring along additional votes—the Chief, for example, might go along with a decision to find that Prop. 8 initiative proponents have no standing rather than write or join a fiery dissent extolling the virtues of traditional marriage). The vision will be one of state’s rights, and defended in a kind of lofty language that treats the states as though they were people with feelings. Justice Kennedy’s nation is one in which Congress and the executive must defer to the power of states in a variety of spheres, intruding only when necessary and the means proportional (Justice Kennedy might say something similar to this in the Arizona voting case, about Congress’s ability to specify that states must accept what the federal government thinks is enough to prove an individual’s citizenship entitling her to vote).
The question will be whether, if we get the summer of Federalism, the other Justices will want to weigh in on the merits of issues that are likely to return to the Court at a later date. A Kennedy opinion holding section 3 of DOMA a violation of states’ rights might be joined by four other Justices in full or in result, with a concurring opinion reaching the merits of the right to gay marriage. Justice Ginsburg and others may want to come out against “skim milk” marriages. The same may happen in the Prop. 8 case. Even if the Court dismisses on standing grounds, or especially if the four liberal Justices and Kennedy join to dismiss the case as improvidently granted, it could well fall to Justice Scalia, Alito, or Thomas to write that fiery dissent extolling traditional marriage and rejecting a living Constitution and the evolution of norms of constitutional conduct.
In the Voting Rights Act case, Justice Kennedy would be joined by the conservatives in striking down the Act, and I am confident of a fiery dissent from the four liberal members. The big question will be how far a VRA strike would go: would it open up the door to cases challenging section 2 of the Act, or section 203 (the language provisions), or portions of the Civil Rights Act? Liberal justices may want to lay down a marker. Some of these questions might depend upon what the Court does in the affirmative action case, but the grant of cert in the Michigan case suggests these issues are still going to kick around the Court for a while before the end of affirmative action. If the Court rejects the University of Texas plan on race grounds, it would be the one major case where a constitutional right (here, the white applicant’s right to equal protection) which would trump the state’s right to decide on admission’s policy.
In the end, we’ll all be living in Justice Kennedy’s world. As we already are.
“Gay-Marriage Coverage: A Media Shutout? Coverage of the issue may be overshadowing another important civil rights cause.”
I have been baffled by the fact that while the Supreme Court’s upcoming rulings on voting rights and affirmative action were relegated to a couple of days of nonintensive media coverage, coverage of the court’s upcoming rulings on same-sex marriage has been treated as the second coming of the Brown v. Board of Education case, which literally changed America for all Americans, as opposed to the second coming of Loving v. Virginia, which the gay-marriage case more closely resembles, and which ultimately changed the lives of some Americans: those pursuing interracial relationships.
I have written this piece for Reuters Opinion. It begins:
Will Justice Anthony Kennedy’s support for a constitutional right to gay marriage doom the constitutionality of affirmative action and a key provision of the Voting Rights Act? To answer this question, legal scholars need to know less about constitutional law and more about human psychology.
Consider last year, when Supreme Court Chief Justice John Roberts, for example, surprisingly sided with the court’s four liberal members in upholding President Barack Obama’s healthcare law against constitutional challenge. It was a stunning choice for the conservative jurist. The reaction of Nate Persily, a leading U.S. election law scholar, was: “There goes the Voting Rights Act.”
At first, the connection between the two cases may seem tenuous. They don’t involve the same issues. The healthcare case was based on Congress’s power to regulate commerce and to tax. In Shelby County v. Holder, heard last month and expected to be decided in June, the court is considering whether Congress’s power to enforce equal rights, especially in voting, includes the power to continue federal oversight of elections in certain states that have a history of racial discrimination.
But Persily’s observation seems correct, and it illustrates how Supreme Court watchers often use amateur psychoanalysis of the justices. For example, a chief justice, feeling constrained by public opinion or concerned about the court’s legacy, may give in on one case in order to gain more political capital to spend on another controversial case.
Richmond Times Dispatch: “Gov. Bob McDonnell has signed legislation requiring voters to present photo ID at the polls.”
The law now requires approval from DOJ or a court under section 5 of the Voting Rights Act.
Washington Examiner OpEd by former DOJ lawyers Christopher Coates and J. Christian Adams:
Senators of both parties should be reluctant to confirm nominee Thomas E. Perez as Labor secretary because he has provided inaccurate testimony under oath.
The explosive report by Department of Justice Inspector General Michael Horowitz details the existence of an open and toxic hostility inside the DOJ toward bringing voting rights cases to protect white victims of discrimination. When Perez testified before the Civil Rights Commission in May 2010, he denied he had ever heard of any such hostility. His testimony was false.
We should know. We detailed this problem to Perez in his office the day before his testimony. We described the long and detailed history of hostility by many DOJ employees toward race-neutral enforcement of the voting rights laws if the victims of discrimination were white.
Yet when Perez was pressed by Civil Rights Commission member Todd Gaziano on whether he was aware of such rancid attitudes toward protecting white victims, he replied: “We don’t have people of that ilk, sir.” Perez knew that wasn’t true. The inspector general’s report documents people “of that ilk,” stacked from top to bottom at the Civil Rights Division, most still working there.
Franita Tolson has posted this draft on SSRN. Here is the abstract:
Scholars and courts have hotly debated whether section 5 of the Voting Rights Act is constitutional under the Reconstruction Amendments. In these debates, attention has focused almost exclusively on the provisions in the Fourteenth and Fifteenth Amendments that authorize congressional enforcement. This Article argues that there is a better, more sure way to ground section 5 of the Voting Rights Act in the Constitution by exploring the structural inferences that emerge from viewing these Amendments holistically. In particular, this Article draws important lessons from section 2 of the Fourteenth Amendment, which allows Congress to reduce a state’s representation in the House of Representatives for abridging the right to vote in state and federal elections for “any reason except for participation in rebellion, or other crime.”
This Article contends that section 2 influences the scope of congressional authority under section 5 of the Fourteenth Amendment, which gives Congress the “power to enforce, by appropriate legislation, the provisions of this article.” Section 2, with its low threshold for violations that trigger a relatively extreme penalty, illustrates the proper means/ends fit for congressional legislation to address voting rights violations. Renewed focus on section 2 also sheds light on the textual and historical link between the Fourteenth and Fifteenth Amendments, a link that provides a broad basis for Congress to regulate state elections. This Article concludes that requiring preclearance of all electoral changes instituted by select jurisdictions under section 5 of the Voting Rights Act is actually a lesser penalty than reduced representation under section 2, and is thus consistent with Congress’s broad authority to regulate voting and elections under the Fourteenth and Fifteenth Amendments.
I just had a chance to read this impressive piece. There is a lot of history surrounding the passage of the 14th and 15th amendments which is important and was neglected until this piece. Download it while it’s hot!
That’s the suggestion in this New Yorker piece.
The grilled shrimp appetizer had just arrived at the 128th annual press-pols Gridiron dinner Saturday night when NAACP President Benjamin Jealous fell into conversation with a fellow white-tied dinner guest about the Supreme Court’s recent argument over the Voting Rights Act.
The distinguished-looking gentleman told Jealous he thought the NAACP Legal Defense Fund lawyer, Debo P. Adegbile, had done a fine job arguing that the law needed to be continued.
Sure, but what happened to the solicitor general? Jealous wondered aloud, he was just awful.
Well, I am the solicitor general, Donald Verrilli Jr. replied.
Linc Caplan uses the incident to defend Verilli, and to argue that Justice Kennedy might like his “as applied” argument in the Shelby County case
This item appears on the ACLU’s “Blog of Rights.”