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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: Department of Justice
WaPo reports on 12-10 party line committee vote.
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.
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.
WaPo: “Republican lawmakers sharply criticized Thomas Perez, the nominee for labor secretary, in a report Sunday over what they said was a questionable deal he brokered while serving as head of the Justice Department’s Civil Rights Division. The 63-page report, issued after months of investigation, is certain to provide fodder for Republicans seeking to challenge Perez at his Senate confirmation hearing Thursday.”
|Hans A. von Spankovsky
The Heritage Foundation
The University of Michigan Law School
|J. Christian Adams
Election Law Center
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.
“DOJ Official Testifies on ‘Significant Challenges’ in Campaign Finance Investigations, Prosecutions”
BLT: “The U.S. Justice Department is ‘hampered’ from uncovering corruption and enforcing campaign finance laws in the aftermath of the U.S. Supreme Court decision in Citizens United v. Federal Election Commission, a top prosecutor testified Tuesday on Capitol Hill.”
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
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.
That’s the suggestion of this Roll Call report.
Either Perez gets confirmed or Republicans further alienate potential Latino voters by attacking him.
I missed this NPR report from last week.
I have written this commentary for Slate. It begins:
A long-awaited report from the Department of Justice’s Office of the Inspector General issued last week sheds considerable light on the battles within the department’s voting section during the Bush and Obama administrations. The picture is not pretty. It is a tale of dysfunction and party polarization that could unfairly derail the nomination of the next secretary of labor and could even provide ammunition to Justice Antonin Scalia’s incendiary charge, made during the Supreme Court’s hearing on the constitutionality of the Voting Rights Act last month, that the civil rights law is a kind of “racial entitlement.” The sordid business raises serious questions about whether the whole model for the federal enforcement of voting rights should be reworked.
Josh Gerstein explores whether the IG report on the DOJ voting section will affect Tom Perez’s expected nomination to be Secretary of Labor.
Update: Adam Serwer clarifies that this is his opinion of the evidence, not his characterization of the IG’s conclusions. Sorry for my confusion.
Josh Gerstein does a great job describing key points in the IG report.
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.
“He’ll be a controversial nominee.”
—An unnamed Democratic strategist, quoted by the LA Times on the nomination of Tom Perez to be labor secretary.
Judging from this Powerline post, there could well be complaints from the right.
Bloomberg: “President Barack Obama is close to choosing Thomas Perez, currently the assistant U.S. attorney general for civil rights, to be labor secretary, according to two people familiar with the matter.”
John Fund at National Review.
See this post at Inside Political Law.
HuffPo’s Ryan J. Reilly sits down with Tom Perez and asks him if DOJ is making contingency plans if Section 5 is struck down.
“Politicizing Justice: Attorney General Eric Holder’s agenda begins and ends with delivering favors to Obama’s constituencies “
In cooperation with Reuters Opinion, I have organized an online symposium on what should happen if the Supreme Court strikes down section 5 of the Voting Rights Act, an issue the Court is considering in Shelby County v. Holder, a case to be argued Feb. 27. My initial commentary begins:
We celebrated Martin Luther King Jr.’s birthday last week in the shadow of a fight over the constitutionality of a key provision of the Voting Rights Act. The Supreme Court will soon hear arguments in Shelby County v. Holder, raising the question whether Section 5 of the act, which requires that states and localities with a history of racial discrimination in voting get permission from the federal government before making any changes in election procedures, is now unconstitutional. The smart money is on the court striking down the law as an improper exercise of congressional power, although Justice Anthony Kennedy or another justice could still surprise.
If the court strikes Section 5, the big question is: What comes next? Reuters has invited a number of leading academics, who focus on voting rights and election law, to contribute to a forum on this question. In this introductory piece, I sketch out what may happen and what’s at stake.
The initial responses are now up, and more will appear in coming days. Here are the first posts, with a snippet from each:
Opting into the Voting Rights Act by Heather Gerken on Wed, Jan 30, 2013, 9:55 PM UTC: “I’m all for protecting every voter. But I would hate to lose what Section 5 provides – protections for racial minorities, in particular. The other protections against racial discrimination in voting – most notably, Section 2 of the Voting Rights Act – are too costly and cumbersome to protect racial minorities from the practices that Section 5 now deters.’
Why Section 5 survives by Abigail Thernstrom on Wed, Jan 30, 2013, 9:58 PM UTC: “Reuters has asked: If Section 5 is declared unconstitutional, what should come next? The answer depends on precisely what the court has to say. But those who are fearful that a majority of justices will agree that Section 5 is yesterday’s emergency legislation might think about the following question: Will Justice Anthony Kennedy (the pivotal vote) want banner headlines in the mainstream media that, however misleadingly, read, ‘Court declares VRA [Voting Rights Act] to be unconstitutional’? The ‘smart money,’ I believe, will bet that the answer is no. And Section 5, in some form, will survive.”
The next Voting Rights Act by Spencer Overton on Wed, Jan 30, 2013, 10:01 PM UTC: “Unfortunately, Hasen is helping opponents of Section 5. He gives justices allowance to ignore facts and law supporting Section 5, and instead perhaps think: Scholars anticipate our court will invalidate Section 5, so we can invalidate it without seeming too extreme or too political.”
Delegate the oversight formula by Christopher S. Elmendorf on Wed, Jan 30, 2013, 10:10 PM UTC: “If the court strikes down Section 5, Congress should re-enact it while delegating to the Justice Department, or a new administrative body, responsibility for determining which states are subject to oversight and which racial groups are protected in each state. The new Section 5 would take effect only after the agency resolves these questions.”
Focus on new legislative approach by Richard H. Pildes on Thu, Jan 31, 2013, 2:53 AM UTC: “If the Supreme Court invalidates Section 5 of the Voting Rights Act, its defenders may be tempted to tinker at the margins and reconfigure it in a way that could comply with the court’s decision. Given Section 5’s symbolic status and historical importance, some will likely feel a strong pull to ‘save” it by staying within the essential framework of the current Section 5, while updating various details. But stepping outside the model of Section 5 and embracing a different legislative approach for national voting-rights legislation might be far more effective.”
MORE TO COME…
The Daily Caller‘s Jim Treacher writes.
I’ve written this Jurisprudence essay for Slate. It begins:
Odds are, the Supreme Court will strike down a key provision of the Voting Rights Act after hearing a case from Alabama that will be argued next month. If the part of the law called Section 5 does indeed go down, minority voters in Southern states and elsewhere will lose a key bargaining chip. Section 5 has enabled them to beat back some attempts to make it harder for them to vote, and helped insure that the gains they’ve made in representation and redistricting are not rolled back. As another recent fight over South Carolina’s voter ID law shows, Section 5 still serves a vital role in an era in which partisan legislatures may manipulate election laws for political gain
I talk a lot about the recent South Carolina case over voter id. Last Friday, the judges hearing the South Carolina case agreed that South Carolina had won enough of its case to be entitled to recover its costs from the United States. But while some like Hans von Spakovsky portray the fee award as a big loss for the government, that misses the point. DOJ was right to bring this suit against a harsh voter id law, and the law which was approved was very different from the one originally submitted; the real winners of the litigation are the minority voters in South Carolina who ended up with a much better law.
Gannett reports: “South Carolina spent $3.5 million defending its voter identification law against government allegations of discrimination, while other states with similar laws faced no such opposition, the state’s top attorney said recently in court papers.The discrepancy proves the 1965 Voting Rights Act treats some states unfairly, South Carolina Attorney General Alan Wilson wrote in a brief supporting a challenge to two of the act’s provisions.”
Waiting on Shelby County? It wouldn’t surprise me. It would be a lot of work to decide the Texas redistricting case, and the case would be moot if the Supreme Court strikes down section 5 of the VRA first in Shelby County.
“SC’s voter ID lawsuit cost $3.5 million; But court rules federal government must cover some of the costs”
The State: “It cost South Carolina $3.5 million to sue the federal government over the state’s voter ID law – but the federal government will have to pay some of that bill. Late Friday, a court ruled that because South Carolina was the “prevailing party,” the federal government had to pay some of South Carolina’s expenses.”
In response to my January 3 post, Texas Remarkably Fails to Mention in Amicus Brief Against Voting Rights Act That Court Found It Engaged in Purposeful Racial Discrimination in Voting Last Year, Texas Solicitor General Jonathan Mitchell sends along the following reply (posted with his permission):
Thanks for your interest in the amicus brief that Texas filed with the Supreme Court in Shelby County v. Holder.
Your blog posting expresses surprise at the amicus brief’s lack of discussion of the Texas redistricting litigation and the discriminatory-purpose finding issued by the district court in that case. But as you know, Texas has already filed both a jurisdictional statement and a reply brief with the Supreme Court that explain in great detail why the district court’s discriminatory-purpose finding was mistaken. Indeed, the district court in the redistricting case itself admitted that there was “no direct evidence” of discriminatory purpose, and the analysis in its opinion improperly equated partisan motivations with racially discriminatory motivations. The Justices are well aware of the discriminatory-purpose finding in the redistricting litigation, and they are equally aware of the State’s response to it. Your insinuation that the State’s lawyers are attempting to sweep this under the rug is unwarranted.
Our amicus brief (like most amici briefs filed in the Supreme Court) was narrowly focused: It was written to explain the unique burdens of the preclearance regime and to explain how the Department of Justice has aggravated rather than mitigated these burdens after Northwest Austin. The brief used Texas’s experience with its voter-identification law to illustrate these features of the section 5 regime. Whether those burdens can be justified is a question that Shelby County’s brief and the other amici briefs have capably addressed. It was not necessary to repeat our discussion of the redistricting decision in the Shelby County amicus brief, especially when discriminatory-purpose claims will remain viable in section 2 litigation after section 5 is struck down.
Texas Remarkably Fails to Mention in Amicus Brief Against Voting Rights Act That Court Found It Engaged in Purposeful Racial Discrimination in Voting Last Year
A remarkable omission in the Texas amicus brief in the Shelby County voting rights case before the Supreme Court: there’s all this talk about how burdensome the law is in relation to the DOJ fight over Texas’s voter identification law. But no acknowledgement—much less excuse or explanation—of the district court’s findings just last year that Texas engaged in purposeful discrimination against minority legislators and voters in its most recent round of redistricting.
Does Texas think the other side will forget to bring this finding up to argue that section 5 is still needed? A very odd choice by the lawyers here.
Numerous Amicus Briefs, Including by Some Covered States, Filed Against Constitutionality of Voting Rights Act Section 5, in Shelby County Case
Via the Project on Fair Representation (representing Shelby County):
Here is how Alabama’s brief begins:
In 2013, there should not be the Uncovered States of America and the Covered States of America. There should be the United States of America. Other States have persuasively explained why their experiences support this proposition. This brief provides Alabama’s own, unique perspective. George Wallace and Bull Connor used to be in Alabama, and Selma and the Edmund Pettus Bridge still are. These people and places were particularly responsible for making the preclearance mechanism necessary and appropriate in 1965. Things that have happened in Alabama in the meantime should thus be particularly instructive in determining whether Congress can employ the same extraordinary measure now.
Alabama’s experience on these fronts is consistent with the Court’s assessment four Terms ago. Things in the South have, indeed, changed. See Nw. Austin Mun. Utility Dist. No. One v. Holder, 557 U.S. 193, 202 (2009). Alabama has a new generation of leaders with no connection to the tragic events of 1965. The effects of those events on voting and political representation have now, thankfully, faded away. These on-the-ground realities show that the 2006 Congress abdicated its constitutional responsibilities when it simply reimposed, on Alabama and other States ready to be equal partners in the Union, burdens that previously were necessary and appropriate only because of a defiance and recalcitrance whose vestiges no longer exist.
Ryan Reilly reports for HuffPo.
Press release: “The State of New Hampshire and the United States Attorney General reached an agreement today that would grant a bailout for the ten towns and townships in the State that are subject to the preclearance requirements of the Voting Rights Act. The agreement was submitted to a three-judge court in Washington, DC, and asks the court to wait thirty days to enter it, so that the towns can publicize the proposed settlement. Campaign Legal Center Executive Director J. Gerald Hebert serves as legal counsel to the State of New Hampshire in his capacity as a solo practitioner. New Hampshire becomes the first state to bailout since Congress changed the bailout requirements under the Voting Rights Act in 1982. To read the joint motion to enter consent judgment and decree, click here. To read the proposed consent judgment and decree, click here.”