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

Christopher Seaman has posted this draft on SSRN (forthcoming, St. Louis U. L. Rev.). Here is the abstract: In Northwest Austin Municipal Utility District No. 1 v. Holder (“NAMUDNO”), 129 S. Ct. 2504 (2009), the Supreme Court declined to decide one of last Term’s most prominent issues: the constitutionality of the 2006 renewal of Section 5 of the Voting Rights Act. Instead, the Court adopted an unexpected statutory…

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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…

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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

Rick Pildes sends along this guest post: A number of us have been trying to work out the implications of the Court’s NAMUNDO decision for the next constitutional challenge to Section 5. I now want to address Armand Dernfer’s brief analysis, which I had promised to 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…

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Persily: Exhausted by Exhaustion

Nate Persily sends along this guest post: Rick Pildes takes me to task for suggesting the Court might perpetually avoid the constitutional shortcomings of the coverage formula for the VRA. He mistakes my speculation and kremlinology of the Court for a legal argument, so only a few words are necessary in response. First, just to be clear, I specifically said in my post that the Court might reach the constitutional issues posed by the coverage…

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Pildes: Confusion About the Future of Voting-Rights Litigation

Rick Pildes sends along this guest post on NAMUDNO: In the wake of the Supreme Court’s decision to avoid resolving the constitutionality of Section 5 for now, some confusion has emerged about legal questions concerning the next challenge. In particular, Nate Persily suggested that the recent decision suggests the Court might “perpetually avoid” ever addressing the constitutionality of Section 5. Nate imagines a kind of…

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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 racial…

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Epstein: NAMUDNO and the Dilemma of Observational Equivalence

David Epstein sends along this guest post: Observers reacted to the NAMUDNO punt with a sigh of relief, but also as a bit of a missed opportunity: rather than have this case provide guidance for the next round of redistricting, the next round of redistricting will probably serve as input for the court’s disposition of Section 5. So let’s look ahead a bit and try to game out what influence the court’s ruling, or lack thereof,…

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Gans: Some Thoughts, Post-NAMUDNO, Going Forward

Curtis Gans sends along this guest post: I have been reluctant to enter the fray with regard to NAMUDNO and the VRA, in part because I’m not a lawyer, and while that hasn’t deterred others, my comments will not have the legal precision of some who have commented here. I join with those who have expressed relief that the Court did not decide on the constitutionality of section 5 and those who have expressed concern that with a case…

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McDonald: Court Signals No Future Challenges to Section 5

Michael McDonald sends along this guest post: Like the cartoon Road Runner, the Supreme Court Justices nimbly stepped through a door they drew in thin air to sidestep the oncoming train that, if derailed, would have ended Section 5 of the Voting Rights Act. Section 5 requires certain “covered” jurisdictions identified by Section 4 to submit changes in election administration to the federal government for approval before they can…

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NAMUDNO and the Phantom Exhaustion Requirement

I’ve been thinking about the issues Nate raises in his post, and I’ve corresponded privately with some people about this issue. My view is somewhat different from Nate’s, though I’m sure there will be a segment of the civil rights community that will think along these lines and argue that nothing should be done with preclearance (not only is that risky, but it gives up an opportunity to craft what Rick P, Sam, Guy, Bruce…

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Persily: Perpetual Constitutional Avoidance?

Here is a guest post from Nate Persily: In the immediate aftermath of the NAMUDNO decision, I shared the view espoused by many that this was a placeholder decision that urges Congress to act so that the Supreme Court won’t need to declare section 5 of the VRA unconstitutional. After contemplating what the next case might look like, however, I am starting to think that maybe the Court has placed itself in a position where it might never…

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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

There’s been lots of armchair psychoanalysis of the Justices in Monday’s voting rights case. Heather Gerken says the liberals signed on to Chief Justice Roberts’ opinion containing a lot of troubling language about the constitutionality of section 5 of the VRA to send a “crystal clear, united message” to Congress to amend the Act before 5 justices strike it down. There’s been debate over whether Justice…

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Ansolabehere and Persily: Deciding Not to Decide…For Now

Steve Ansolabehere and Nate Persily have written this guest post: The Supreme Court dodged a bullet yesterday by deciding not to decide the constitutionality of section 5 of the newly reauthorized Voting Rights Act. The decision, which makes small jurisdictions eligible for bailout from the Act, will have little practical impact. It leaves for another day the vexing constitutional question whether the Act’s selective targeting of…

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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

Despite Chief Justice Roberts’ longstanding skepticism of the Voting Rights Act and his blistering set of questions to supporters of section 5’s constitutionality during oral argument, the Chief has managed to put together a coalition of 8 of 9 Justices to put the question off for another day. To do so, the Chief had to ignore the seeming plain language of the act, as well as earlier Supreme Court caselaw on point to reach an…

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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

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 the…

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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?

Here’s an admittedly crazy thought. When Congress was considering amendments to the Voting Rights Act in 2006, there were a number of proposals by academics to fix the Act. In my testimony before the Senate Judiciary Committee, I noted four possible 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…

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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…

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

My initial impression is this: I am often accused of being a “Chicken Little” when it comes to the Roberts Court and voting rights. But so far I have no reason to retract my pessimism. I think the best that supporters of section 5 can hope for is a controlling opinion by Justice Kennedy, perhaps speaking only for himself, finding a way to read the statute to allow bailout and ducking the constitutional question. I still think that…

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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

Here is a guest post from Ellen Katz: On April 29, the Supreme Court will hear argument on whether Section 5 of the Voting Rights Act remains constitutionally justified. The question has long been anticipated and many people, myself included, have written on the issue. But while most of the arguments being presented to the Court are familiar ones, a remarkable new claim has emerged in the briefs and commentary surrounding the case: Barack…

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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

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…

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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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