“An Uncertain Future for Section 5 of the Voting Rights Act: The Need for a Revised Bailout System”

…omatic” bailout that would unilaterally remove from coverage all jurisdictions that have not violated the major provisions of the Voting Rights Act since the 1982 renewal. Second, the current requirements for obtaining bailout – which this paper calls “optional” bailout – should be revised to make it easier for jurisdictions to determine whether they are eligible. Adopting these changes will more narrowly tailor…

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Against Financial Regulation Reform, And Disclosure of Those Against It

…tising against the proposals, according to the Campaign Media Analysis Group, which monitors political advertising. The ads portray the financial reforms — misleadingly, the administration says — as a $4 trillion bailout for big banks. The group’s membership and financing have been kept secret, and it has refused to divulge its donors; it is suing the Federal Election Commission, claiming the rules for disclosure in political…

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NAMUDNO,DOJ to Consent to Bailout

As I understand it, this consent decree will become final next month. “On remand, the Attorney General and the Defendant-Intervenors have agreed that the District has fulfilled the conditions required by Section 4(a) and is entitled to the requested declaratory judgment allowing it to bail out of Section 5 coverage. The parties also have agreed that the District’s alternative claim challenging the constitutionality of Section 5…

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Pildes: Hanging In on Bailing Out

…in meaningful numbers since 1982, then even if time passes before the Court faces the next challenge, bailout might look just as non-minimal an act then as it looks now. Perhaps some smaller jurisdictions that could not seek bailout before will now bailout successfully. But I wonder how much bailout will look to the Court like a truly meaningful escape valve in a way that affects the constitutionality of Section 5 if it continues to be the case…

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Persily: Exhausted by Exhaustion

…rmula unconstitutional for the same reasons it raised constitutional doubts in NAMUDNO. I gather he deems it either impossible or very unlikely that the Court might do what I suggest. Obviously, Pildes could be right that if bailout is viewed as burdensome, let alone futile, then the jurisdiction could argue that it should not be subjected either to coverage or to bailout. In this regard Pildes compares the state of Georgia to an unmarried woman…

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Pildes: Confusion About the Future of Voting-Rights Litigation

…judgment that it no longer must seek preclearance. Or the state might bring an action in response to a DOJ decision not to preclear some change. The heart of Georgia’s argument would be that it should not have to seek bailout, or prove its eligibility for bailout, because the very fact that Georgia has been singled out for this burden is what makes the Act unconstitutional. The central argument, under either the rational basis test or the…

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Kang: The Continuing Relevance of Section 5

…lines that follow from directly overruling precedent or striking down Section 2. This may well be the path taken by the Court with respect to Section 5 following NAMUDNO, at least if Nate Persily is correct about the Court’s bailout analysis. Although the Ricks– Hasen and Pildes –compare NAMUDNO to Bush v. Gore, the NAMUDNO decision reminds me of Wisconsin Right to Life v. FEC. Like WRTL, NAMUDNO eschews sweeping invalidation but may…

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Epstein: NAMUDNO and the Dilemma of Observational Equivalence

…ill exacerbate the problem Nate Persily points out; namely, that it may indeed be difficult to find a way for the Court to directly rule on the constitutionality of Section 5. They can, after all, force jurisdictions to seek bailout first, and then rule only on the bailout provisions of the VRA, rather than Section 5 itself. One of Persily’s possible approaches to challenging Section 5 rests on a Georgia v. Ashcroft-type case, where a…

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Gans: Some Thoughts, Post-NAMUDNO, Going Forward

…clearance coverage is no longer necessary and which might bring court cases similar to NAMUDNO with uncertain results as to the constitutionality of section 5, a very strong argument can be made for Rick H’s pro-active bailout proposal and the summary removal of jurisdictions which should not be covered. The question that hasn’t been answered in this dialogue (or multilogue) as far as I can see is what are the updated benchmarks for…

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McDonald: Court Signals No Future Challenges to Section 5

…resources to challenge the constitutionality of Section 5 also has the resources to petition the federal courts for bailout. A covered jurisdiction challenging the constitutionality of Section 5 will be shown the bucket for bailout. A covered jurisdiction that does not qualify for bailout due to recent evidence of discriminatory practices will make a poor plaintiff, and will only reinforce the need for Section 5. The irony is that there are a…

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NAMUDNO and the Phantom Exhaustion Requirement

…his writings—a new VRA for a new century, because the Court will never act (isn’t that the message Pam sends in her piece in the Times?). The Court never says in its NAMUDNO opinion that a jurisdiction must seek bailout in the future before raising a constitutional challenge. Sure, that’s the natural reading of NAMUDNO, but who says natural readings are going to apply when this question returns (they certainly didn’t…

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Persily: Perpetual Constitutional Avoidance?

…individually severable, so I could see the Court rereading them to require, with the most extreme interpretation, for instance, that jurisdictions with a ten year clean record of no intentional discrimination are entitled to bailout. This may contort the bailout statute, but I think severing it in this way (or interpreting it to avoid constitutional difficulty or even vindicating an as-applied challenge to the bailout statute) seems about as…

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Issacharoff: On Statesmanship

…f their citizens were alive. That is compounded by the difficulties in place in getting out from coverage if the 1964 conditions no longer obtain. This is why Rick Hasen and others (including me) urged Congress to change the bailout provision in the 2006 amendments — to no avail. Judge Tatel below handled this issue as if it were squarely justified by South Carolina v. Katzenbach and the legislative history of the Act. The critical actors…

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The Scalia Enigma in NAMUDNO

…s which does not include the MUD could bail out. Here is how the Chief deals with this problem in the NAMUDNO opinion: In 1982, however, Congress expressly repudiated City of Rome and instead embraced “piecemeal” bailout. As part of an overhaul of the bailout provision, Congress amended the Voting Rights Act to expressly provide that bailout was also available to “political subdivisions” in a covered State, “though…

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Ansolabehere and Persily: Deciding Not to Decide…For Now

…inority voting rights. They, along with others that have a spotless record regarding discrimination in voting, should be urged to bail out. Congress too can help shore up the Act’s constitutionality. It could alter the bailout statute itself, as some have proposed, to make bailout automatic or more prevalent. However, at a minimum it should establish a national reporting system that will allow us to evaluate the quality of democracy among…

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More NAMUDNO Commentary

Bruce Ackerman Gerry Hebert (whom I used to call the “Bailout King,” but whom I will now refer to as “The Anomaly” (see Thomas, J. concurrence, fn. 1) Walter Dellinger, Linda Greenhouse, and Dahlia Lithwick (Slate’s “The Breakfast Table”) NPR (and here) Demos NAACP LDF Senator Schumer, via email: “This 8-1 decision brings a sigh of relief to those of us who are advocates for the Voting Rights Act….

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Initial Thoughts on NAMUDNO: Chief Justice Roberts Blinked

…roadly unconstitutional….The statute allows jurisdictions that can prove they no longer engage in racial discrimination in voting to petition to bail out from coverage under Section 5. The utility district wants such a bailout. But the statute clearly says that only the entire state like Texas or a political subdivision that registers voters (which the utility district does not do), can ask for a bailout. Since there’s no good…

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A State Constitutional Convention Fixing California’s Structural Governmental Problems as the Price for a Federal Bailout?

That’s the deal Joe Mathews proposes in an NYT oped: Most important, President Obama should press California’s elected officials and its voters — 61 percent of whom supported him last November — to make constitutional changes. Among these would be the elimination of the gridlock-creating two-thirds vote for budgets and tax increases, and new curbs on ballot initiatives that mandate spending for popular programs without…

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von Spakovsky Responds on NAMUDNO Standing Question

…n was right to describe the latter as an “admittedly crazy thought,” and the particular argument that the Court can avoid determining whether Section 5 remains constitutional on standing and ripeness grounds doesn’t stand up to scrutiny (strict or intermediate). For the record, my “admittedly crazy thought” involved fixing bailout, not the coverage formula….

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More on Standing and NAMUDNO

…m the CFR. Otherwise, there would have to be 16,000 as-applied challenges – one for each of the VA’s buildings. Last year’s Washington State Grange case revived the Salerno rule in the specific context of an election law case. I think this is bad news for those who think courts should decide constitutional challenges before, not after, election disputes or other highly developed fact patterns, such as a declined bailout

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Could Congress Moot NAMUDNO By Passing the Proactive Bailout Amendment Now?

…preserve the measure’s constitutionality, including updating the coverage formula, proactive bailout, a shorter time period for renewal, and being more careful about reversing Georgia v. Ashcroft. In terms of proactive bailout, I pointed to Mike McDonald’s excellent contribution to The Future of the Voting Rights Act book discussing such a proposal. I then pushed proactive bailout publicly, offering a specific draft amendment…

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NAMUDNO: The Answer to My Question Appears to Be “Yes”

…the law stand. I have been warning about the problem with a straight-out preclearance for years, but the civil rights community decided to roll the dice, and got Congress to go along with them. I really thought my proactive bailout amendment would have helped a tremendous amount toward preserving section 5’s constitutionality. In terms of additional analysis, addition to commentary linked yesterday (here and here), Howard links to the…

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Live-Blogging the Oral Argument in NAMUDNO: VRA in Trouble

…stating that “it may well be true that today [Section 5] is maintaining strict federal controls that are not as neces­sary or appropriate as they once were.’” 9:28 Another key exchange with Kennedy: The fact that bailout may not be working well “gives me serious pause.” There’s a discussion of the bailout amendment that I had suggested in 2006. Katyal says Congress rejected it because of the need for deterrence….

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The Misguided Effort to Explain Obama to the Court–or–Why Obama Really Matters and What the Court Should Do About It

…dentify places with good voting practices and immediately offer agency support for such “bailout.” At the same time, the Department should actively assist local leaders in places that do not currently qualify for bailout to develop strategies that would make them eligible for bailout in the coming years. Doing so would refine Section 5’s reach, and activate a more vibrant and flexible remedial program even if Congress retains…

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“Registering Doubt: If We Can Nationalize Banks, Why Not Our Election Process?”

I have just written this piece for Slate. It begins: “Like our financial system, our voter registration system needs a federal government bailout. Before the election, while the public and press are still paying attention, we should get both presidential candidates to commit to a more sensible, secure, and universal voter registration process.” It concludes: There’s something in this for both Democrats and Republicans….

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Pildes: The Bailout Bill and the Awkward Merger of Presidential and Independent Control

…as now given the troika a source of enormous leverage over the Secretary of the Treasury — hence the ability, potentially, to influence the Secretary’s decisions on a whole range of issues. Accountability for the bailout is divided between the Secretary (and hence the President) and this troika. All are responsible to some extent. If the Secretary strongly believes a certain action is necessary, but a couple members of the troika…

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“Well, I don’t know whether Senator McCain is a model of debate prep today.”

…See here, as I predicted. Please email me other examples of people trying to excuse any debate performance by Sen. McCain (a debate which he’s apparently already won before it starts) based upon his decision to go to D.C. to work on the bailout. UPDATE: Ambinder: “McCain has spent a lot less time preparing for this debate than Obama owing to McCain’s decision to suspend his campaign and return to Washington.”…

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A Thought on the 60-Day BCRA Window

…nions might want to run ads could occur in September, with congress in session. This week’s financial meltdown is an excellent case in point. Corporations and unions might want to run t.v. or radio ads on the financial bailout, unconnected to the election, but urging Obama or McCain to do something in particular about the crisis. To do so now, they’ll have to argue it falls under the WRTL exemption. But perhaps Congress should have…

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“Voting Rights Act decision stirs emotions”

…Here is a fascinating story from the Clarke Times-Courier with the subhead: “A decision by county supervisors not to proceed with a request to bailout from under the watchful eye of the federal Voting Rights Act of 1965 is stirring passions on both sides of the issue and insinuations of political pandering.” Thanks to a reader for passing this along….

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In Section 2 Vote Dilution Case in Indian Country, Fremont County, Wy. Lawyer Argues Section 2 is Unconstitutional

…This is very interesting and the kind of thing I feared when Congress renewed section 5 without making changes to the preclearance formula or bailout. An adverse opinion in NAMUDNO could open the door to new constitutional attacks on other civil rights statutes, including section 2 of the VRA….

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“Essex County, Virginia, Becomes Latest Local Government To Receive Voting Rights Act ‘Bailout'”

…Hebert, the Bailout King, has issued this press release. An interesting snippet: “Hebert also noted that Essex County has the highest percentage of minority voters of any local government that has sought or obtained a bailout. The County is nearly 40% African-American in population, according to the 2000 census. Hebert said that the substantial percentage of minority voters in Essex County should encourage other local governments to…

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