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

…ts constitutionality, NAMUDNO left little doubt that Section 5 remains on shaky constitutional ground. A revised bailout system is likely the best approach for placing Section 5 on a more solid footing. To date, however, bailout has been little used; despite predictions made during the previous renewal of Section 5 in 1982, only a handful of the thousands of covered jurisdictions have sought and successfully obtained bailout. This paper suggests…

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Against Financial Regulation Reform, And Disclosure of Those Against It

From today’s NY Times: The group, the Committee for Truth in Politics, has spent an estimated $5 million on advertising 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 refus…

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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 shou…

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Pildes: Hanging In on Bailing Out

…o do. Armand, like Nate Persily, is focused on the potential significance the statute’s escape valve, the bailout option, will have for the next case. But they are making quite different arguments; though the differences are subtle, they are important. Armand argues that how effective bailout turns out to be could well affect the Court’s ultimate conclusion as to whether Section 5 is constitutional. The easier bailout is, or the m…

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Persily: Exhausted by Exhaustion

…er 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 forced to seek court approval for an abortion. I guess I see the bailout option differently, or more to the p…

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Pildes: Confusion About the Future of Voting-Rights Litigation

…ion 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 “congruence and proportionality” standard, is that the Act exceeds Congress’ enforcement powe…

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Kang: The Continuing Relevance of Section 5

Michael Kang sends along the following guest post: Thanks to Rick Hasen for hosting this discussion of NAMUDNO, which I’m happy to join near its close. I’ve enjoyed surveying academic opinion about the Voting Rights Act and NAMUDNO, but I’m less skeptical than many of my colleagues about Section 5’s continuing relevance. Of course President Obama’s election was a watershed moment in the evolution of American racia…

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Epstein: NAMUDNO and the Dilemma of Observational Equivalence

…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 state’s redistricting plan is denied preclearance and then this is used as a vehicle to attack the preclearanc…

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Gans: Some Thoughts, Post-NAMUDNO, Going Forward

…rance, but jurisdictions within it might. (I don’t know enough to speak to Alaska and Arizona.). 3. Should the bailout provisions be changed? Given the fact that there are many covered jurisdictions for which pre-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 pro…

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McDonald: Court Signals No Future Challenges to Section 5

…ources 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 number…

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NAMUDNO and the Phantom Exhaustion Requirement

…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 apply to the reading of the bailout rules themselves in NAMUDNO)? Again I’m reminded of the first Florida 20…

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Persily: Perpetual Constitutional Avoidance?

…or federal approval. The response from the Court would appropriately be an exhaustion-style argument: go seek bailout and if you are denied bailout, then come back and see us. The implication here is that jurisdictions unconstitutionally covered by section 5 — because they have not engaged in the requisite predicate unconstitutional acts that would justify coverage and preclearance — should be able to bail out. The coverage formu…

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Issacharoff: On Statesmanship

Here is a guest post from Sam Issacharoff: Since Rick brought my comment in the Times into the debate, let me take the opportunity to address some of the issues behind the Chief Justice’s statesmanship. To my mind, there are three issues that stand out in the debate over Section 5. The first is a legal one, the second is one about the legislative process, and the third is one about the field of voting rights. First, the VRA extension had…

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The Scalia Enigma in NAMUDNO

…inion: 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 [coverage] determinations were not made with respect to such subdivision as a separate unit.” Voting Rights…

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Ansolabehere and Persily: Deciding Not to Decide…For Now

…before this decision only 17 municipalities (all in Virginia) have bailed out since 1982. The expansion of the bailout option to smaller municipalities is unlikely to lead to a flood of requests, given that very few eligible jurisdictions who always could have bailed out have decided to take that step. The rarity of bailout is somewhat of a mystery. Perhaps the criteria for bailout are too difficult or politicians are loathe to take as their…

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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 A…

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Initial Thoughts on NAMUDNO: Chief Justice Roberts Blinked

…iscrimination 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 statutory loophole, the larger constitutional question seems unavoidable.”) 3. Chief Justice Blinks. Chief Justi…

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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 id…

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von Spakovsky Responds on NAMUDNO Standing Question

I have posted at this link Hans von Spakovsky’s response to Gerry Hebert’s suggestion that NAMUDNO’s challenge to section 5 may fail on standing grounds. The response begins: Several recent blog posts and chatter in the election law world shows that supporters of s5 are despairing after the April 29 oral argument. This fear has led to some real reaching and produced some very flawed, if creative, post hoc arguments for how th…

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More on Standing and NAMUDNO

Scott Rafferty wrote the following post on the election law listserv, which I reprint here with permission: Rick points to Gerry Hebert’s detailed analysis of the distinction between “facial” and “as-applied” challenges in NAMUNDO, arguing that the procedural abandonment of the former might create a way for the Court to avoid a substantive decision in NAMUNDO. I’m inclined to think that the district court was…

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

…fixes to help 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 amen…

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

My Slate commentary title posed a question that most observers now believe is most likely to be answered in the affirmative: a majority of the Court is likely to kill section 5 of the VRA, though some hold out hope of Justice Kennedy finding a way to forestall that event a bit or lessen its blow. One thing that is clear to me is that if this case stands and falls on empirical evidence of intentional discrimination by the states, section 5 falls….

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

…rmation. 8:44 Coleman is up for the challengers. The Justices appear not to be buying the statutory argument for bailout. Justice Kennedy notes practical problems with doing so. (This is what I expected what would happen with the statutory argument.) 8:49 Kennedy and Souter question whether the MUD has standing to raise the bailout point. 8:50 Lyle is putting up his post in progress (he’s had the advantage of hearing the entire argument l…

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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

…t 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 the Act otherwise unchanged. As John Lewis said: “Barack Obama is what comes at the end of that bridge in S…

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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. Democr…

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

Here is a guest post from Rick Pildes: A new issue about who holds effective power over the bailout has emerged in the recently-released “discussion draft” of the bailout bill. Congress is now proposing a structure in which actions of the Secretary of the Treasury can be vetoed by an entity the bill would create, the “executive committee” of the newly created Financial Stability Oversight Board. This committee will cons…

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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

Back in around 2000, when McCain-Feingold was being debated, I recall that both Richard Briffault and I expressed the view that the 60 day window imposed in BCRA, which prevents corporations and unions from spending their general treasury funds on “electioneering communications” within 60 days of the general election, was too long. In election years, we both argued, important public policy issues (what I termed “genuine issue…

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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'”

Gerry 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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Complaint Filed Asking for Bailout or Declaration that Section 5 is Unconstitutional

…g up on this post the Northwest Austin Municipal Utility District Number One has filed this complaint requesting bailout from Voting Rights Act coverage and, if bailout is not available (which it apparently would not be, because only Travis County or the State of Texas could request bailout that would also cover the district), the district wants a declaration that Section 5 is unconstitutional on grounds it exceeds Congressional power and is not…

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