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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
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.”
I’ll be anxiously awaiting the release of the transcript Monday in the Supreme Court oral argument in Arizona v. Inter Tribal Council. In brief, the question is whether Arizona can refuse to accept a simple federal form for voter registration (which Congress in the 1993 National Voter Registration Act required states to accept), on grounds Congress has exceeded its constitutional power under the Elections Clause to “make or alter” state rules for congressional voting.
I’ll be writing more about the case after I read the transcript, but at this point I can say the following: This is one of those cases where if the Supreme Court affirms the result in this case (that Arizona must accept the federal form), it will be no big deal, but if the Court reverses it would mark a major change in U.S. election law. Many earlier Supreme Court cases noted Congress’s broad power to set rules for federal elections. For example, here’s the Court in the 1997 case, Foster v. Love:
The Elections Clause of the Constitution, Art. I, §4, cl. 1, provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” The Clause is a default provision; it invests the States with responsibility for the mechanics of congressional elections, see Storer v. Brown, 415 U.S. 724, 730 (1974), but only so far as Congress declines to pre-empt state legislative choices, see Roudebush v. Hartke, 405 U.S. 15, 24 (1972) (“Unless Congress acts, Art. I, §4, empowers the States to regulate”). Thus it is well settled that the Elections Clause grants Congress “the power to override state regulations” by establishing uniform rules for federal elections, binding on the States. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832—833 (1995). “[T]he regulations made by Congress are paramount to those made by the State legislature; and if they conflict therewith, the latter, so far as the conflict extends, ceases to be operative.” Ex parte Siebold, 100 U.S. 371, 384 (1880).
(My emphasis.) A contrary ruling in the Arizona case would alter the state-federal balance over federal elections and give states a greater ability to manipulate election rules for partisan reason, something especially dangerous in the era of the Voting Wars—not to mention preventing Congress from imposing uniform voting standards in the U.S., such as the requirement that we elect all members of Congress from single-member districts.
In case you are interested, here is the Question presented: “Did the court of appeals err 1) in creating a new, heightened preemption test under Article I, Section 4, Clause 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to this Court’s authority and conflicts with other circuit court decisions, and 2) in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote?”
At this link. Tomorrow, you should be able to use the same link to find event video.
Extensive posting from Armand Derfner.
The Mirage of Racism: “Under the VRA as it currently stands, we have too much federal intervention too soon, for too long, and for too little cause. The Supreme Court should strike the VRA down and let Congress return to the drawing board for something better.”
Josh Gerstein does a great job describing key points in the IG report.
I have now had a chance to give an initial read to the mammoth report of the IG on the voting rights section and I have some thoughts which could change upon closer scrutiny (news reports at NYT, LAT). Here are my takeaways from the report.
1. With all the controversies over politicized decisionmaking at the Justice Department–from the Bush Administration DOJ’s preclearance of the Georgia voter id law and Texas mid-decade redistricting to the Obama Administration DOJ’s handling of the New Black Panthers Party controversy—the IG finds no proof that either administration made improper enforcement decisions or administered the law unfairly. The controversial results in the cases were explainable by Democrats’ and Republicans’ different ideological goals and emphases, as well as discretionary enforcement and litigation choices, well within the policy-making powers of different administrations. In this era of the voting wars, it is unrealistic to expect that differing views over voting issues wouldn’t spill over into DOJ handling of such issues. The most inflammatory charges made in recent years by conservatives about the Obama DOJ’s handling of voting rights matters—such as that the department responded more quickly to liberals’ FOIA requests to the department and that Obama hiring for the section was ideologically motivated—were found to be unsupported. (The DOJ did find that the neutral criteria used for hiring, such as looking for candidates with experience with voting rights cases, skewed hiring towards liberals. The IG suggests changing the criteria to avoid an appearance of bias.) It is worth emphasizing from this section that Abby Thernstom has been proven right once again about the New Black Panthers Party case: really small potatoes.
2. The sharp divisions on ideological grounds over the handling of these claims led to a poisonous atmosphere at DOJ’s voting section. From Bradley Schlozman’s statements to “gerrymander the libs” out of the section, to email references to form DOJ Section Chief Chris Coates as a “klansman,” the last decade has seen ideological warfare in the voting section. The report gives numerous examples of liberals criticizing conservatives and conservatives criticizing liberals, of nastiness, of comparisons to Nazis, to anonymous nasty postings by Dept. employees on various blogs, and to a general culture of mistrust which developed between the two sides within the agency. From my initial read, it seems like conservatives in the department bore most of the personal attacks from career voting rights attorneys who are mostly liberal. The report concludes with remarks about the poisonous partisan atmosphere at the DOJ, and says that the culture of the section needs to change.
3. It is tough to draw the line between political appointees of the department improperly using ideology as a criterion for making hiring and firing decisions and the appointees making sure that employees are on board in furthering the goals and emphases of the administration. The IG is critical of how Republican appointees treated Joe Rich and how Democratic appointees treated Chris Coates. I’m not sure that the two cases are equivalent–I’d recommend that readers look at the report for themselves–but the IG report seems to be trying to make the case that the two administrations were equally at fault on this score. So when Coates, a conservative, is excluded from sensitive meetings by political DOJ officials (I presume here over what to do if the Supreme Court strikes section 5 of the Voting Rights Act), was that proper or improper? Again, readers should read and judge for themselves
4. One of the sharpest divisions between liberals and conservatives was over whether protections of the voting rights act should apply to white voters—either as a matter of legal interpretation of the Act or administration priorities. Consider these two passages from the report giving views within the department:
Coates and other career attorneys told the OIG that they were aware of comments by some Voting Section attorneys indicating that the Noxubee case should have never been brought because White citizens were not historical victims of discrimination or could fend for themselves. Indeed, two career Voting Section attorneys told us that, even if the Department had infinite resources, they still would not have supported the filing of the Noxubee case because it was contrary to the purpose of the Voting Rights Act, which was to ensure that minorities who had historically been the victims of discrimination could exercise the right to vote….
Many of those individuals told the OIG that they believed that the reason the voting-rights laws were enacted was to protect historic victims of discrimination and therefore the Section should prioritize its resources accordingly. Additionally, some of these individuals, including one current manager, admitted to us that, while they believed that the text of the Voting Rights Act is race-neutral and applied to all races, they did not believe the Voting Section should pursue cases on behalf of White victims. Indeed, our review of Voting Section e-mails revealed widespread and vehement opposition among career employees to the prosecution of the Noxubee matter precisely because the defendants were Black.
5. Whether or not the Supreme Court strikes section 5 of the VRA this summer, there needs to be some rethinking of the mission of the voting section, and whether and how such an agency can function in the era of the voting wars with liberal and conservative career attorneys overseen by political staffs which change policy and enforcement priorities with each new administration.
6. Finally, on Tom Perez: I don’t see anything in here which would seriously interfere with his nomination to be Secretary of Labor. The worst that’s said about him is that he gave testimony about the involvement of political appointees in the New Black Panthers case which turned out to be incorrect. There was no evidence he made any willfully misleading statements.
You can now read A Review of the Operations of the Voting Section of the Civil Rights Division put out by the DOJ Office of the Inspector General. I will provide more comments when I’ve had a chance to read the report. Depending on the report’s conclusions, icould complicate Tom Perez’s potential nomination to be the new Labor Secretary.
Here is the report’s conclusion:
inappropriate and intemperate language
expected and demanded by the public of the Department of Justice.
NYT Editorial: “These more recent battles over ballot access show how important it is to build new legislative protections for participation in democracy. Section 5 of the 1965 Voting Rights Act, which requires areas with a history of discrimination to pre-clear any electoral changes with the Justice Department, remains a significant tool to prevent abuses in areas spread across 15 states, and it should be upheld by the court. But no matter what happens to the act, it’s imperative that Congress take action to prevent these kinds of abuses across the rest of the country.”
Details here on what looks like a great event.
“I think by the time the debate is concluded, there will be a very bipartisan consensus that if there is an amendment needed to Section 5 to keep it viable, the votes will be overwhelming.”
—Representative Jim Sensenbrenner, on what will happen if the Court strikes down the coverage formula for Section 5 of the Voting Rights Act in the Shelby County case.
Bloomberg Businessweek: “At a sensitive and historic moment in racial relations in the U.S., late-night comedian Bill Maher has offered some of the most provocative commentary on the future of civil rights. I will explain.”
HuffPo: “If the Obama administration needs a plan to deal with the likely death of a key provision of the Voting Rights Act, it may be able to dust off its blueprint from 2009….Unbeknownst to the public, President Barack Obama’s administration had prepared a statement from Attorney General Eric Holder for the possibility that the court would strike down Section 5. Officials were so surpised the court didn’t toss out the section, in fact, that an alternative Holder statement — praising the ruling as a ‘victory for voting rights in America’ — had to be written the day of the decision. A written statement wasn’t the only thing the administration did to prepare for a possible adverse court ruling in 2009. Greg Craig, the White House counsel at the time, recalled that his team “worked close with, kept track of, commented on, and met with an internal DOJ task force” on the Voting Rights Act issue. Other officials confirmed that there was a Voting Rights Working Group made up of both Justice Department and White House officials, and records show Holder was briefed by the group roughly a month before the Supreme Court decision.”
[Brian] Schoeneman [chosen instead of von Spakovsky] said “Democrats may feel they won (in removing von Spakovsky), but there isn’t going to be a whole lot of daylight between Hans and myself on the issue of voter fraud.”
Saying he “doesn’t buy the disenfranchisement argument” put up by Democrats, Shoeneman asserted, “We ought to make voting at least as hard as it is to pick up dry-cleaning.”
NYT: “Emerging from the bloody protests in Selma, Ala., the Voting Rights Act was initially heralded as a declaration that the federal government would no longer tolerate the open racism of the segregated South. But this narrow mandate to monitor elections in six Southern states grew quietly over the years, extending to unexpected corners of the country, including the Bronx.”
On Sunday, March 3, Representative John Lewis locked arms with Luci Baines Johnson and Vice President Joe Biden and marched across the Edmund Pettus Bridge here. Forty-eight years earlier, on “Bloody Sunday,” Lewis was badly beaten by Alabama state troopers at the foot of the bridge while attempting to march from Selma to Montgomery in support of voting rights. Eight days later, Luci’s father introduced the Voting Rights Act before a joint session of Congress. “When Lyndon Johnson signed the Voting Rights Act on August 6, 1965,” Lewis said, “he helped free and liberate all of us.”
Amy Howe: “That leaves, as it so often does, the vote of Justice Kennedy. And although at least one of his questions has been interpreted as signaling support for the law, for the most part his comments and questions left the overwhelming impression that he too would be inclined to rule in favor of Shelby County.”
Carvin, Hebert, Thernstrom and Lindenbaum discuss Shelby County at GW Law, moderated by Spencer Overton. Unfortunately closed to the press.
Nate Silver: “As much as it pleases me to see statistical data introduced in the Supreme Court, the act of citing statistical factoids is not the same thing as drawing sound inferences from them. If I were the lawyer defending the Voting Rights Act, I would have responded with two queries to Chief Justice Roberts. First, are Mississippi and Massachusetts representative of a broader trend: do states covered by Section 5 in fact have higher rates of black turnout on a consistent basis? And second, what if anything does this demonstrate about the efficacy of the Voting Rights Act?”
Her Opinionator column concludes:
The Roberts court stands on the brink of making an error of historic proportions. A needless and reckless aggrandizement of power in one case to satisfy the current majority’s agenda will erode the court’s authority over time.
But there was no sign from the majority last week of an appetite for stepping back this time, as the court did in its last confrontation with Section 5 four years ago. Justice Scalia – he who flaunts his refusal to join any portion of any opinion that cites legislative history – returned repeatedly to his view that manifest Congressional support for the Voting Rights Act was somehow illegitimate, not to be taken at face value. The problem was, he said, that members of Congress “are going to lose votes if they do not re-enact the Voting Rights Act.”
Justice Scalia, that’s called democracy.
Or it was.
Ilya Shapiro weighs in on the Chief Justice’s remarks in the Shelby County case, concluding: “To be clear, I’m not suggesting that Massachusetts is a hotbed of racism and should be subject to Section 5. Instead, I’m saying that Mississippi – the whole broader South – has changed, obviating the need, and therefore constitutional justification, for Section 5.”
Jon Stewart for his part weighed in on Northern racism: “Yeah, we’ve been to Boston.”
HuffPo reports. I’ve advocated making contingency plans now, because I expect there to be a political opening for new voting rights legislation if the Court strikes section 5 in Shelby County. I think Republicans will be looking for a way to militate against the negative fallout with minority voters if the five Republican-appointed Justices vote against this crown jewel of the civil rights movement.
I’ve also predicted that there will be a battle between the civil rights community and the election reform community over whether a new VRA should be race-based or not.
Justice O’Connor, in Daily Show Interview, Seemed to Not Know Shelby County Case Was About Section 5
Howard Bashman links to all three segments. In the first segment, before Justice O’Connor came on, Stewart had a lengthy attack on the Shelby County case, and included audio from Justices Sotomayor and Justice Scalia from last week’s oral argument (another nail in the coffin for cameras in the courtroom).
In the first of two segments with Justice O’Connor, Stewart asked about the Shelby County case, and it seemed that Justice O’Connor was not following the case even closely enough to know it was about Section 5. Very odd.
Justice O’Connor also refused to say whether there were any cases in which she regretted her decision. Yet she has in the past indicated her regret over her decision in Republican Party of Minnesota v. White, striking down a judicial speech rule under the First Amendment.
HuffPo: “Whatever Scalia’s talents as a jurist, those skills do not include vote-counting in the United States Senate. The Huffington Post asked a sampling of Senate Republicans and found that, contrary to Scalia’s presumption, some of his legislative branch colleagues across the street are just as ready as he is to toss out the heart of the Voting Rights Act, its Section 5, which prevents states with a history of racial discrimination from altering their voting laws without federal approval.”
Politifact Rates as “Half-True” Chief Justice Roberts’ Statements About Miss., MA Voting Rates in Shelby County Case
[Bumping to top---now out from behind the paywall]
The National Law Journal reports in an article (quoting Pildes, Persily, Fishkin, and me).
Marcia Coyle of NLJ also has written An Embattled Voting Rights Act.
Lyle Denniston on Justice Scalia.
Question: Do you believe that the Voting Rights Act is still needed?
Boehner: “Oh, I think the Voting Rights Act is passed with large majorities in the House and Senate. I think it’s something that has served our country well. But there is an argument over a very small section of the Voting Rights Act. And that’s what the court is going to consider.”
P.J. Media: “Hey Southerners–You’re Racist!!”
The following is a guest post from Chris Elmendorf and Doug Spencer:
Are the Covered States “More Racist” than Other States?
Christopher S. Elmendorf
Douglas M. Spencer
During oral argument last week in Shelby County v. Holder, the constitutional challenge to Section 5 of the Voting Rights Act, Chief Justice Roberts asked, “[I]s it the government’s submission that the citizens in the South are more racist than citizens in the North?” Solicitor General Verrilli responded, “It is not, and I do not know the answer to that . . . .”
This post offers a preliminary answer to the Chief Justice’s question, using recent data. Our initial results suggest that the coverage formula of Section 5 does a remarkably good job of differentiating states according to the racial attitudes of their nonblack citizens.
There are essentially three schools of thought about how best to measure racial prejudice using survey questions. Some researchers favor explicit measures of prejudice (“old-fashioned racism” or stereotyping), based on agreement with statements like “blacks are less intelligent than whites” and “blacks are lazy.” Others favor symbolic measures of prejudice or “racial resentment,” based on questions about affirmative action and whether blacks have gotten “more than they deserve.” Still others favor measures of implicit or subconscious bias. For the results reported here we use explicit stereotyping, as it remains disputed whether racial resentment measures capture prejudice as opposed to conservatism, and it is uncertain whether implicit bias predicts political behavior.
We created a binary measure of stereotyping that roughly captures whether a person is more prejudiced toward blacks than is typical of nonblack Americans. Our data source is the 2008 National Annenberg Election Survey (NAES), which asked non-black respondents to rate their own racial group and blacks in terms of intelligence, trustworthiness, and work effort, on a scale of 0-100. On average respondents ranked their own group about 15 points above blacks on each trait. We coded respondents as holding “prejudiced” views with respect to blacks on a particular trait if the difference between their rating of their own racial group and their rating of blacks exceeded the national mean difference for the trait. To create an overall measure of prejudice for each respondent, we summed the number of traits on which the respondent was more prejudiced than the national mean. Finally, we converted this sum into a binary variable, coding as “prejudiced overall” those respondents who exceeded the national mean with respect to at least two of the three traits.
To be clear, a respondent whom we have coded as “not prejudiced overall” may well be quite prejudiced. But the Chief Justice’s question—whether “citizens in the South are more racist than citizens in the North”—is a question about relative prejudice, and this is what we are trying to capture.
We provide two estimates of the proportion of adult, nonblack residents in each state who are “prejudiced overall.” The first is based on simple disaggregation of the large NAES dataset (N=19,325). This method should work pretty well for the largest states but may yield unreliable estimates for smaller states, which contribute relatively few respondents to the NAES sample. For the second estimate we use multilevel regression with post-stratification (MRP), a recently developed statistical technique that has been shown to yield remarkably accurate estimates of state-level public opinion. We model prejudice as a function of individual-level covariates (sex, race, age, and education) and a set of state-level predictors (black population, percent of blacks in poverty, segregation, and income inequality).
Using either technique we find a strong positive correlation between Section 5 “covered status” and anti-black prejudice, but with MRP the correlation is truly stunning:
The MRP model suggests that the six fully covered states in the South are, by our measure, six of the seven most prejudiced in the nation. The two fully covered states that rank lower on the list, Arizona and Alaska, are presumably covered for reasons other than discrimination against blacks (anti-Latino discrimination in Arizona, and anti-Native discrimination in Alaska).
We wish to emphasize that these are preliminary results only. Though our findings are not entirely unexpected, other ways of aggregating the NAES prejudice questions, or of modeling responses, may yield different rankings of the states (to say nothing of other ways of measuring prejudice). We will present additional results at the Midwest Political Science Association conference in April.
Suffice it to say for now that the coverage formula seems defensible under the standard implicit in the Chief Justice’s questioning. Or, to borrow a metaphor from Judge Williams of the D.C. Circuit, Congress appears to have “hit the bull’s eye throwing a dart backwards over its shoulder.”
Elmendorf is Professor of Law at UC Davis. Spencer is a doctoral student in Jurisprudence and Social Policy at UC Berkeley. Elmendorf contributed to an amicus brief on behalf of the respondents in Shelby County v. Holder.
 Our overall measure of prejudice includes just those respondents who exceeded the national average by at least one standard deviation, or 14% of the sample.
Really? with Seth and Kevin. “The South is still the Michael Jordan of racism.” VRA is a backup defender.
“I don’t think you get to say what’s outdated when you’re a small council of old people in robes who can’t be fired.”
SIMON: Based on what was reported about the oral arguments, it seems like the Voting Rights Act might be in trouble.
TOTENBERG: I’d say dead meat. I’d be wildly astonished if Section 5 of the Voting Rights Act, the [pre]clearance section, survives this iteration of legal arguments. And just four years ago, when the court upheld the Voting Rights Act, it held its nose and said, Congress, you better take a serious look at this law and see if the formula for who’s covered needs changing. And Congress, of course, didn’t change it. So, it was pretty hostile questioning from the conservative wing of the court. And that’s five justices I could count pretty clearly.
Justin Levitt posts the order and notes its possible significance, As Ryan Reilly reported, a conservative group tried to block the bailout. Both sides are using the New Hampshire case to debate the fairness and necessity of continued section 5 coverage for parts of the country.