My One Personal Interaction with Sen. Sessions Does Not Give Me Confidence About Strong Voting Rights Enforcement with Him as AG

Others have written about Senator Jeff Sessions,  President-Elect Trump’s expected nominee for Attorney General, and questions of race and voting rights. I can add only one thing from personal experience. In 2006, I testified (that day, along with Professors Sam Issacharoff and Rick Pildes) before the Senate Judiciary Committee on the then-expiring preclearance provisions of the Voting Rights Act. I had earlier written a law review…

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“Trump’s unusual conflict: Millions in debts to German bank now facing federal fines”

WonkBlog: Federal regulators are seeking a $14 billion fine from Deutsche Bank, Trump’s top lender, to settle claims that the bank issued toxic mortgages amid the housing crisis. German media have suggested the bank has sought a state bailout that could lead to partial ownership of the bank by the German government. A settlement could be reached before a new president takes office, but government-ethics experts say the Deutsche Bank situation…

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“Bernie Sanders Scored Victories for Years via Legislative Side Doors”

NYT: The immigration bill, opposed by House Republicans, never became law. But the jobs program amendment was classic Bernie Sanders, a self-described Democratic socialist who has spent a quarter-century in Congress working the side door, tacking on amendments to larger bills that scratch his particular policy itches, generally focused on working-class Americans, income inequality and the environment. Mr. Sanders is not unlike Tea Party…

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

Cody Gray has posted this draft on SSRN (forthcoming, Harvard Civil Rights-Civil Liberties Law Review). Here is the abstract: On June 25, 2013, the Supreme Court issued its decision in Shelby County v. Holder, ruling that the coverage formula in Section 4(b) of the Voting Rights Act is unconstitutional and “can no longer be used as a basis for subjecting jurisdictions to preclearance” under Section 5. In the four months after Shelby County was…

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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…

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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…

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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…

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“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                        …

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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…

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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…

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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…

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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.”

Press release: On January 2, 2013, two of Nielsen Merksamer’s leading voting rights experts, Marguerite Leoni and Chris Skinnell, filed an amicus curiae brief in the United States Supreme Court, in the pending constitutional challenge to Section 5 of the federal Voting Rights Act (Shelby County, Ala. v. Holder)…. In August of 2012, after more than two years of investigation, the United States Attorney General found that Merced…

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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. …

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

The following is a guest post from Chris Skinnell and Marguerite Leoni: We write in response to Mr. J. Christian Adams’s article, “Eric Holder Cons the Courts to Save Voting Rights Act,” to which you linked 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…

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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…

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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?

In my initial post on the health care decision, I stated “Once again, the Chief has manipulated the doctrine of constitutional avoidance to do what he wanted to do in a high profile, important case.” I hadn’t had a chance to go back and expand on this issue since I wrote that, but Nicholas Rosenkranz’s very smart post has prompted me to do so.  Rosenkranz persuasively argues that Roberts’ use of the avoidance canon…

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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…

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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…

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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…

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

This press release from Gerry Hebert 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…

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Court Denies Government Discovery Request in Shelby County VRA Case

You can read the 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…

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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…

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