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

…ddition to these benefits, retaining the federal observer program would preserve standing in bailout proceedings. This result is crucial, as the bailout mechanism provides covered jurisdictions with an incentive to eliminate practices that deny or abridge minority political participation and affords them the opportunity to distance themselves from the stigma associated with having been subjected to the VRA’s special remedial provisions. The litig…

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

(At Rick Hasen’s request, I’ve posted (with permission) two listserv responses to this post by Rick Pildes and Dan Tokaji.  The first was from Mike Pitts.  For this one, you can blame me.  The version below is modified a bit from what was sent to the listserv.) To determine the relative power of the substantive work that section 5 was “actually” doing recently, Rick P. and Dan looked to the numbers of objections and MIRs…

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

Josh Blackman poses the question on Twitter following my earlier post.  And I think this piece in American Prospect by Heather Gerken from 2009 shows the answer is yes, though it was a longshot: Finally, it’s possible that the cavalry might come to Section 5′s rescue, in the form of a congressional solution. The oral argument in April already prompted one prominent scholar to act before the Court issued its decision. And it’s h…

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

David Hawkins says it may be up to Reps. Sensenbrenner and Westmoreland in the House. 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….

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“Shelby County and the Illusion of Minimalism”

I have posted this draft on SSRN, which I will be presenting at an APSA panel on “The Future of Voting Rights After the Shelby County Case.” Here is the abstract: Chief Justice Roberts’ majority opinion in Shelby County v Holder, holding unconstitutional a key part of the 1965 Voting Rights Act, purports to be a modest decision written with reluctance and humility. The Court struck the coverage formula in Section 4 of the VRA used to…

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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…

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

…in the statute, including a 10-year record of nondiscrimination in voting-related actions. The act also provides that the attorney general can consent to entry of a judgment of bailout only if, based upon investigation, the attorney general is satisfied that the jurisdiction meets the eligibility requirements. The Linda Fire Protection District filed its bailout action in the U.S. District Court for the District of Columbia on April 10, 2013. Di…

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“Justice Anthony Kennedy and Shelby County”

Gerry Hebert: As someone who has devoted the vast majority of my professional career enforcing the Voting Rights Act, the imminent decision in the Shelby County, Alabama case will be of great interest to me. My perspective is a unique one: I spent over twenty years in the Department of Justice (most of that time enforcing the Voting Rights Act), and I have spent nearly twenty years in private solo practice representing state and local government…

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“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…

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

Nate Persily, Charles Stewart III, and Steve Ansolabehere have written an important new paper [updated], which I have now posted.  The paper comes just in time for argument in the Shelby County case.  Here is the introduction (minus the footnotes): Three years ago, when the Supreme Court last considered the constitutionality of the coverage formula of Section 5 of the Voting Rights Act, we submitted an amicus brief on behalf of neither party ana…

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“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.”

…United 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 mos…

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

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.  Campa…

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

…rlier 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 to qual…

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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….

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

See this blog post linking to the complaint. And in 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…

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“Communities Find Relief From Voting Rights Act”

NPR: “Over 21 years, attorney J. Gerald Hebert handled more than 100 civil rights cases as the Justice Department’s point man enforcing the Voting Rights Act. Now, he helps governments 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…

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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?

…unanimous opinion, rejected both arguments.87 The court spent five pages addressing the bailout question, and then forty-eight pages addressing the thorny constitutional question (with the remainder of the opinion consisting of maps and appendices). For purposes of this article, I examine only the bailout analysis. In addressing the argument of the utility district that it should be allowed to bail out, the court began by noting that until 1982…

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“Googling the Future of the Voting Rights Act”

Below, a piece by Chris Elmendorf on statistical tests for racism, and their impact on the Voting Rights Act.  Originally published in JURIST (jurist.org), and available there at http://jurist.org/forum/2012/06/christopher-elmendorf-voting-future.php. *  *  * Introduction Enacted in 1965 and reauthorized several times since, the Voting Rights Act (VRA) has long been regarded as the capstone of our nation’s civil rights architecture. The VR…

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

The Shelby County opinion is here.  Judge Williams dissented. The court also issued a unanimous opinion in the related LaRoque case, finding the issue mooted by DOJ’s belated preclearance of the law in question. From Judge Tatel’s majority opinion in Shelby County: The point at which section 5’s strong medicine becomes unnecessary and therefore no longer congruent and proportional turns on several critical considerations, including t…

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

From today’s opinion in the Shelby County case, I was gratified (but somewhat surprised) to see the following passage in the district court’s discussion of NAMUDNO: On appeal, however, the Supreme Court reversed and remanded. In a decision that has since been criticized by some as “a questionable application of the doctrine of ‘constitutional avoidance,’” see Richard L. Hasen, Constitutional Avoidance and Anti…

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

…bert 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, a…

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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, m…

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“Partisan Gerrymandering as a Safeguard of Federalism”

Franita Tolson has posted this draft on SSRN (forthcoming Utah Law Review). Here is the abstract: Partisan gerrymandering has been criticized as stifling political accountability and voter participation, and as anti-competitive and harmful to democracy. This article offers a dissenting view: that partisan gerrymandering, though sometimes antagonistic to democratic ideals, can potentially be democracy-enhancing and federalism-reinforcing. This a…

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