“Savior Through Severance: A Litigation-Based Response to Shelby County v. Holder”

…particular, I suggest a litigation-strategy aimed at expanding the federal observer program and preserving the “bailout” procedure through severance of the coverage formula from Sections 8 and 4(a)(1) of the Voting Rights Act. These provisions incorporate the coverage formula, but their invalidation does not follow from the reasoning of Shelby County. They impose minimal federalism costs on the States, are justified by “current needs,” and reason…

Continue reading
Share

VRA Preclearance (A Response to Pildes/Tokaji, pt. 2)

…pful.  I disagree with some of their points (given the history of covered jurisdictions and the availability of bailout, section 5 was never purely about disparate impact alone: there’s good reason to be more suspicious of policies with a disparate impact in Texas than in Wisconsin).  And I heartily agree with others (it is unclear how section 5 “vote denial” claims would be considered by the Supreme Court, there is utility in p…

Continue reading
Share

Could Justice Ginsburg Really Have Believed Congress Would Fix the VRA in 2009?

…e, from requiring local officials to consider the impact of their decisions on participation rates to proactive bailout. Many of these proposals draw on conversations begun at a conference hosted by the Tobin Project and the American Law Institute on elections research and reform in February 2009 or build upon work done for the leading collection of scholarship on Section 5’s renewal gathered here. Depending on Congress to save the day mean…

Continue reading
Share

“New Voting Rights Law Hinges on Some Less-Visible Republicans”

…Rep. Westmoreland and I were strange bedfellows during the 2006 reauthorization, when the conservative Republican lawmaker offered the pro-active bailout amendment I was pushing to help save section 5.  The amendment went down to defeat, as Westmoreland knew it would, and he voted ultimately against the 2006 reauthorization. The House hearing is happening now. Here’s my post from yesterday on why I’m now more pessimistic of a deal….

Continue reading
Share

“Shelby County and the Illusion of Minimalism”

…s an audacious opinion which ignores history, declines to engage the dissent’s powerful argument that the VRA’s bailout provisions solve any constitutional problem, and rejects the Roberts Court’s stated commitment to judicial minimalism in its treatment of facial challenges and severability. It pretends it is not overturning section 5 yet it sets a standard under which any new coverage formula will likely fail a constitutional test. The opinion…

Continue reading
Share

Reactions to Shelby County: Morgan Kousser

I’ve tried to make the case that the very process of bailout established a continuing connection between current conditions and the 2006 formula for section 4.  Here, Morgan Kousser presents one of the alternative continuing connections, with detailed data showing the incidence of voting rights actions and the (formerly) covered jurisdictions.  And he pulls it all together as only Morgan can: The Supreme Court’s Shelby County v. Holder dec…

Continue reading
Share

“JUSTICE DEPARTMENT REACHES AGREEMENT WITH CALIFORNIA SPECIAL DISTRICT ON BAILOUT UNDER THE VOTING RIGHTS ACT”

Press release about what could be the last section 5 bailout EVER:   ______________________________________________________________________________ FOR IMMEDIATE RELEASE                                                                                                 CRT THURSDAY, JUNE 20, 2013                                                                                  (202) 514-2007 WWW.JUSTICE.GOV                                       …

Continue reading
Share

“Justice Anthony Kennedy and Shelby County”

…political subdivisions that have bailed out since the 1982 amendments to the Voting Rights Act liberalized the bailout requirements, I have represented around 95 percent of those jurisdictions. Of course, I have no idea how the case will come out, but the Campaign Legal Center’s amicus brief in the Shelby County case on behalf of jurisdictions that have bailed out made clear that the Court should not strike down as unconstitutional any pro…

Continue reading
Share

“More Bailouts of Covered Jurisdictions Moving Forward as Supreme Court Weighs Voting Rights Act”

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…

Continue reading
Share

“Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 the Voting Rights Act”

…n, has always been over and underinclusive of the jurisdictions of concern. Overinclusivity is addressed by the bailout provision, which allows “good” jurisdictions to escape coverage when they can demonstrate a clean voting rights record. So long as the coverage-formula-plus-bailout regime represents a rational attempt to address the problem of minority voting rights violations, defenders argue, the law is constitutional. The challengers’ argume…

Continue reading
Share

“U.S. Supreme Court Poised To Determine Constitutionality of Section 5 of the Voting Rights Act; Merced County Files Amicus Brief Defending Its Bailout From Section 5 Coverage.”

…nited States Attorney General found that Merced County met the criteria, and consented to Merced County’s bailout. Marguerite and Chris represented the County in the bailout action.  The bailout also had coattails, freeing more than 80 cities, school districts and special districts with territory in the County from the need to comply with Section 5’s preclearance obligation.  Merced County’s was far and away the largest and most…

Continue reading
Share

“New Hampshire and Justice Department Reach First State Bailout Agreement”

…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 Execut…

Continue reading
Share

“Response by Merced County’s Section 5 Lawyers to J. Christian Adams’s Article”

…nked earlier in the day.  That article is misinformed on the facts and the law.  Merced County was qualified to bailout, and worked extremely hard to get there.  There was no “collusion” of any sort.  At the time it sought Attorney General Holder’s consent, the County had been victorious in the Lopez litigation, was in full compliance with its preclearance obligations, and satisfied the bailout requirements.  The County worked for over ten years…

Continue reading
Share

Section 5 Opponents to Argue that DOJ Breaking Bailout Rules in Order to Save the Constitutionality of Voting Rights Act section 5

I expect this argument to get a lot of play. The great irony here, for those who don’t follow this issue closely, is that you have people who oppose section 5 of the VRA complaining that DOJ is making it too easy for those jurisdictions subject to its preclearance provision to escape from the Act’s coverage. UPDATE: Adams says he’s not an opponent of section 5….

Continue reading
Share

Bailout King Goes for First Statewide Voting Rights Bailout: New Hampshire

…n case the connection to the Shelby County case (in which the Supreme Court will consider the constitutionality of section 5) is lost on anyone, Gerry Hebert explains: “It should be important to the Court, in considering Section 5’s constitutionality, that not a single jurisdiction seeking a bailout has been turned down, and that States and political subdivisions are pursuing bailouts with ease in greater numbers than ever before.”…

Continue reading
Share

“Communities Find Relief From Voting Rights Act”

…nts gain release from the law’s central mandate.  In election law circles, he’s known as the “Bailout King.” No lawyer has guided more counties and cities with a history of voter discrimination to “bail out” from federal oversight of their local elections. Hebert’s prolific work was cited in a dissenting opinion by Supreme Court Justice Clarence Thomas. Hebert, 63, uses a largely unknown exemption, or &#8…

Continue reading
Share

Was Chief Justice Roberts Most Unprincipled in Applying the Doctrine of Constitutional Avoidance in the Health Care Case, in NAMUDNO (the Voting Rights Act Case) or in Citizens United?

…w the utility district to bail out. As with the taxing power analysis by the Chief in the health care case, the bailout analysis in NAMUDNO was a total surprise. See Heather Gerken, The Supreme Court Punts on Section 5, Balkinization (June 22, 2009) (“the statutory argument is one that almost no one (save Greg Coleman, the lawyer who argued the case and who is now entitled to be described as a mad genius) thought was particularly tenable because…

Continue reading
Share

“Googling the Future of the Voting Rights Act”

…election returns from the 1970s and state practices in the 1960s and 1970s. Nor did Congress update the “bailout provisions,” which determine whether a jurisdiction may escape from Section 5’s coverage. Defenders of Section 5 argue that the coverage formula is constitutionally adequate because it captures most of the former Jim Crow South, where intentional racial discrimination in the electoral process is likely to be worse th…

Continue reading
Share

Breaking News: Divided D.C. Circuit Panel Upholds Constitutionality of Voting Rights Act, Teeing Up Issue for Supreme Court

…n the increasing number of jurisdictions “bailing out” from section 5 coverage—this increased bailout activity seems to have been orchestrated directly to allow courts to make this determination.  The majority concludes by noting that it is deferring, although the “legislative record is by no means unambiguous.” Judge Williams’ dissent dives into the data too, and finds little basis to find a problem with minor…

Continue reading
Share

Federal District Court Calls Out Supreme Court on Its Shoddy Statutory Interpretation of the VRA in the NAMUDNO Case

…r, 61 FLA. L. REV. 991, 992-93 (2009) (describing the Court’s “statutory construction” of the bailout provision in Nw. Austin II as “contrived”), Justice Roberts, writing for an eight-justice majority, sidestepped the “big question” of Section 5’s constitutionality by instead resolving the case on narrower, statutory grounds, see Nw. Austin II, 129 S. Ct. at 2508. Specifically, the Court found that…

Continue reading
Share

“Local Governments Continue to Pursue and Receive Voting Rights Act ‘Bailouts'”

…ert begins: “This summer has been a busy one for local governments taking advantage of the opportunity to bailout from coverage under the Voting Rights Act of 1965. So far this year, the following local jurisdictions have bailed out: Jefferson County (TX) Drainage District no. 7; Alta (CA) Irrigation District; the City of Manassas Park, VA, and Rappahannock County, VA. Currently, there are five other bailouts pending before the DC Court, al…

Continue reading
Share

Court Denies Government Discovery Request in Shelby County VRA Case

…Court’s order here. Among other things, the DOJ wanted to determine whether Shelby County is eligible for bailout. But Shelby County does not want bailout. So the case is moving directly to summary judgment on the question whether Congress’s extension of the VRA section 5 for another 25 years exceeded congressional power, the issue left undecided in NAMUDNO. Briefing on the summary judgment motion should be complete in December, meani…

Continue reading
Share

“Partisan Gerrymandering as a Safeguard of Federalism”

…gress in order to influence federal policy in ways favorable to their interests. Given the controversy over the bailout, the stimulus package, and “Obamacare,” the states’ redistricting authority remains one of the few historical and textually-based vestiges of power that states can use to influence federal policy. Part I of this article discusses the Supreme Court’s decision in Vieth v. Jublierer which, contrary to much of the…

Continue reading
Share