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

…Court adopted an unexpected statutory construction permitting the plaintiff to seek an exemption called “bailout” from continued coverage under this provision. But even though the Court avoided directly ruling on its 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, ba…

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Against Financial Regulation Reform, And Disclosure of Those Against It

…g. 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 advertising are an unconstitutional impediment to free speech. James Bopp Jr., the lawyer and conservative advocate…

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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 shoul…

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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 more…

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Persily: Exhausted by Exhaustion

…).” I would also add that congressional inaction and the absence of moves by DOJ to encourage and achieve bailouts would make this aggressive move more likely. To be sure, the Court has not boxed itself into a corner with NAMUDNO. Its freedom to strike down the VRA rests only on the vitality and willingness of the five members who vote to do so. Also, it is wrong to suggest that I ignored the possibility of a facial challenge that squarely…

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Pildes: Confusion About the Future of Voting-Rights Litigation

…f Catch-22: if any covered entity seeks to argue the Act is unconstitutional, the courts will tell it to try to bailout. If it succeeds, the case goes away. If it does not, then the entity is properly covered and cannot complain about the Act. Hence, the Court will never decide whether Section 5 is constitutional or not. As a matter of law, I think this suggestion is incorrect. Nothing in the Court’s recent decision leads to this conclusion…

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Kang: The Continuing Relevance of Section 5

…today as importantly different from 1965. Of course the crisper tailoring of the Section 5 coverage formula and bailout provisions is eminently sensible, as are calls for deeper attention to the evolution of what Dan Tokaji calls the “new vote denial” and to the development of broader guarantees for an affirmative right to vote. However, as much as things have changed in many parts of the country, it is easy to forget that things have…

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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 preclearance…

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Gans: Some Thoughts, Post-NAMUDNO, Going Forward

…arance, 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

…rnment for approval before they can take effect. In NAMUDNO v Holder, the Justices interpreted Section 4 “bailout” — the ability for jurisdictions to petition the federal courts to escape Section 5 coverage — as applying to all jurisdictions, including a municipal water district, despite the lack of such enabling language in the Act. This technical interpretation allowed the Court to avoid ruling on the larger issue of the…

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NAMUDNO and the Phantom Exhaustion Requirement

…am 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 2000…

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Persily: Perpetual Constitutional Avoidance?

…for 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 formula…

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Issacharoff: On Statesmanship

…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 in the months that follow should not forget that the Court unanimously reversed the lower court. As many have note…

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The Scalia Enigma in NAMUDNO

…ral argument, Justice Scalia was as skeptical of the constitutionality of the Act as the Chief Justice. And the bailout argument ultimately adopted by the Court should make Justice Scalia squirm. When it comes to statutory interpretation, Justice Scalia is a big believer in the plain meaning and following statutory precedent set by the Court. Here, the precedent set in City of Rome was that only political subdivisions that register voters which d…

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Ansolabehere and Persily: Deciding Not to Decide…For Now

…ction 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 jurisdictions for coverage now exceeds Congress’s power to protect civil rights. The Court will eventually confront that question, however, and there are things Congre…

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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

…iscrimination by these covered jurisdictions through a holding that the utility district is entitled to ask for bailout. 2. Justice Souter’s legacy? This outcome may have been the handiwork of Justice Souter, and one of his lasting legacies. At oral argument, Justice Souter asked the following to the MUD’s lawyers: “Well Mr. Coleman, this is important to me. Do you — do you acknowledge that if we find on your favor on the…

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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

…gressional action to fix the coverage formula. But Rick Hasen 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

…ed 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 petition. But it also suggests that Mr. Hebert may be on to something. (And advice on this month’s Preminger hearing, especially from jurisdictional experts, is always welcome.)…

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

…ixes 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 amend…

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

…ights 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 major news stories. Here are a few that Howard did not yet pick up: Rodger Citron (Findlaw) Nate Persily National Law…

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

…lling 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 is unlikely. The more likely scenario is 5 votes to strike down the Act. Chief Justice Roberts, and Justices Alito, Scalia and (presumably) Thomas are surely there. Justice Kennedy expressed considerable skepticism of the federalism costs and “substantial burdens&…

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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

…Justice should identify 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 Co…

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

…or 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. Democrats talk about wanting to expand th…

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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 consis…

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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

…ngress 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 enacted a shorter window, as Richard and I both had advocated….

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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

…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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