DOJ Files Amicus Brief in Wisconsin Voter ID Case, Statement of Interest in Ohio Early Voting Case

DOJ Wisconsin Filing DOJ Ohio Filing Ryan Reilly HuffPo story. DOJ Press release: ATTORNEY GENERAL HOLDER ANNOUNCES JUSTICE DEPARTMENT FILINGS IN VOTING RIGHTS CASES IN WISCONSIN AND OHIO   WASHINGTON – Attorney General Eric Holder announced today that the Justice Department has submitted filings in voting rights cases in Wisconsin and Ohio.  The department’s involvement in these two cases represents its latest steps to enforce the remainin…

Continue reading
Share

Now Available: 2014 Supplement to Lowenstein, Hasen, & Tokaji: Election Law Cases and Materials

…ed version of of the Supreme Court’s new campaign finance case, McCutcheon v. FEC, an edited version of Shelby County v. Holder, and an edited version of the lower court decision in the Alabama redistricting cases which the Supreme Court will hear in the October 2014 term. The supplement also considers developments in Voting Rights Act litigation after the Supreme Court’s Shelby County case as well as cover litigation over citizenship…

Continue reading
Share

An Anticipatory Overruling of #Abood in #Harris Case?

…n the 2009 NAMUDNO case. Instead it signaled the Act was unconstitutional, and then overturned it in the 2013 Shelby County case. As I’ve explained, the Court in Shelby County relied upon dicta in NAMUDNO as though that earlier case had settled it. Similarly, on the campaign finance side, Chief Justice Roberts and Justice Alito signalled the coming overruling of the ban on corporate general treasury spending in elections in the Wisconsin R…

Continue reading
Share

About that #SCOTUS Unanimity…A Skeptical Note

Today’s unanimous opinion in the cell phone cases is the latest in an unusual term of unanimity on the Supreme Court. I don’t want to downplay things, but I think the unanimity is likely an aberration. To begin with, the Court is still divided on big issues like campaign finance. Witness the bitter divisions in McCutcheon this term.  Or Shelby County on voting rights last term. And it is still quite divided on abortion and same sex m…

Continue reading
Share

“Shelby County One Year Later: Good for Voting Rights?”

Franita Tolson: “Despite these developments, the lesson of Shelby County should not be that states have broad authority to impose restrictive voting regulations. The true lesson of the decision, one year later, is that even the most painful and costly loss can be a vehicle for effectuating change. The loss of the preclearance regime forced advocates to be more aggressive in using creative legal arguments and obscure statutory provisions in…

Continue reading
Share

One Year After Shelby County

Here was the lede of my NY Times oped from the day after the decision, The Chief Justice’s Long Game: IN an opinion brimming with a self-confidence that he hides behind a cloak of judicial minimalism, Chief Justice John G. Roberts Jr., writing for a conservative Supreme Court majority in Shelby County v. Holder, cripples Section 5 of the Voting Rights Act. The court pretends it is not striking down the act but merely sending the law back t…

Continue reading
Share

AALS Election Law Section Call for Papers

Via Josh Douglas:   Dear Election Law Colleagues, The brand-new AALS Section on Election Law is issuing a Call for Papers to select two panelists for its inaugural program at the 2015 AALS Annual Meeting in Washington, DC.  The Section’s program will be on Sunday, January 4, 2015, from 2:00-3:45.  The title of the program is “The Voting Rights Act at 50.”  The two panelists selected from the Call for Papers will join an…

Continue reading
Share

VRAA DOA?

It is sure looking that way. And it is no surprise. As I wrote the day the bill dropped in January: The politics and path dependence.  Despite these constitutional issues, I would bet that the VRAA would have passed in 2006 and the Supreme Court would have upheld it despite the constitutional issues flagged in points 2 and 3 above. The Supreme Court would have seen Congress making a broad and real effort to update the coverage formula, and to ta…

Continue reading
Share

How is the SCOTUS Opinion in Bond Like NAMUDNO?

…itical branches a window of time in which to take action. This hesitancy was nowhere to be found in Shelby County, Alabama v. Holder, which the Court chose to hear despite the absence of a circuit split. By exhibiting a high degree of restraint in the moment, Northwest Austin ironically established the groundwork for Shelby County‘s subsequent invalidation of a key federal statute with bipartisan support in Congress. Bond looks a lot like Northwe…

Continue reading
Share

Top Recent Downloads in Election Law on SSRN

…Chicago – Law School Date posted to database: 11 Apr 2014 Last Revised: 17 May 2014 6 30 Shelby and Section 3: Pulling the Voting Rights Act’s Pocket Trigger to Protect Voting Rights after Shelby County v. Holder Paul M. Wiley Washington and Lee University – School of Law Date posted to database: 9 Apr 2014 Last Revised: 9 Apr 2014 7 30 Compulsory Voting and the Attitudinal Deconsolidation of Democracy Sha…

Continue reading
Share

Volume 13:2 of ELJ Now Available, With 2-Week Free Access to AALS Symposium Articles

Editorial The Party Line Paul Gronke Election Law Journal: Rules, Politics, and Policy. June 2014, 13(2): 227-227. First Page | Full Text PDF or HTML | Reprints | Permissions Articles The Effects of Voter ID Notification on Voter Turnout: Results from a Large-Scale Field Experiment Jack Citrin, Donald P. Green, Morris Levy Election Law Journal: Rules, Politics, and Policy. June 2014, 13(2): 228-242. Abstract | Full Text PDF or HTM…

Continue reading
Share

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

…s-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 decided, sixteen states enacted restrictions on voting that Republicans be…

Continue reading
Share

Federal District Court Denies $2 Million Attorneys Fees Request to Shelby County Plaintiffs

You can find Judge Bates’ 35-page thoughtful opinion here (via Mike Scarcella). The judge’s main point is that Congress did not intend attorneys fees in cases in which a plaintiff was not enforcing voting rights under the Fifteenth Amendment but instead was seeking to overturn a congressional statute enforcing voting rights. It seems a sensible result to me, but it raises a number of issues of first impression, so there could be an a…

Continue reading
Share

“The Play in the Joints of the Election Clauses”

Derek Muller has posted this draft on SSRN (forthcoming Election Law Journal). Here is the abstract: The Constitution delegates election administration to both the federal government and the state governments. But delineating the boundary between these sovereigns has not been a particularly easy task. The Supreme Court has not been inclined to offer precision regarding the proper scope of authority. This essay examines risk of overlapping roles…

Continue reading
Share

“The Voting Rights Amendment Act of 2014: A Constitutional Response to Shelby County”

ACS: ACS is pleased to distribute “The Voting Rights Amendment Act of 2014: A Constitutional Response to Shelby County,” an Issue Brief by William Yeomans, Fellow in Law and Government, American University Washington College of Law; Nicholas Stephanopoulos, Assistant Professor of Law, The University of Chicago Law School; Gabriel J. Chin, Professor of Law, University of California-Davis School of Law; Samuel Bagenstos, Professor of Law, Th…

Continue reading
Share

SCOTUS’s Recycled Outtakes?

Gerard N. Magliocca, writing about today’s Schuette decision, says “The opinions are out, and they are extremely interesting.  (One gets the impression that some of this material was drafted last year for Fischer and left on the cutting room floor.).” I think Gerald is right about J. Sotomayor’s dissent, which is really one which is more appropriate for a case in which the Court blocks an affirmative action plan than this…

Continue reading
Share

Justice Sotomayor’s Schuette Dissent Talks of Shelby County and Voting Rights

…he reference.  There are a number of election cases mentioned in the dissent, including these references to the Shelby County decision, striking down a key part of the Voting Rights Act. 11. Attempts by the majority to make it more difficult for the minority to exercise its right to vote are, sadly, not a thing of the past. See Shelby County v. Holder, 570 U. S. ___, ___ (2013) (slip op., at 15–17) (GINSBURG, J., dissenting) (describing recent ex…

Continue reading
Share

New Ed Blum Voting Rights Lawsuit in Texas

…D.C. are counsel for the Plaintiffs. They successfully represented Shelby Co. Alabama in Shelby Co. Ala v. Holder and Abigail Fisher in Fisher v. Univ. of Texas last term at the U.S. Supreme Court.  Also representing the Plaintiffs is Meredith B. Parenti of Parenti Law PLLC in Houston, Texas.   Edward Blum, director of the Project on Fair Representation, said, “One-person, one-vote is the cornerstone of our nation’s most enduring election princ…

Continue reading
Share

Updated/Final Versions of Some of My Articles on Campaign Finance, Voting Rights

I’ve posted an updated version, including a short discussion of McCutcheon, of Super PAC Contributions, Corruption, and the Proxy War over Coordination, forthcoming in the Duke Journal of Constitutional Law & Public Policy. I have posted the final version of Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform, 8 Harvard Law & Policy Review 21 (2014) I have posted the final version of Shelby County and…

Continue reading
Share

About that WSJ Article on VRA Section 3 and Travis Crum…

Reader Paul Wiley writes: The Wall Street Journal’s profile of Travis Crum and his influential Note about the VRA’s Section 3 sheds light on one of the Justice Department’s most important tools in the ongoing voting rights battles. But it also gets a few things wrong, either explicitly or by implication. For one, the article says that using Section 3 would “expand the reach of the federal government over states’ vo…

Continue reading
Share

The Court and Institutional Realism: McCutcheon

The majority in McCutcheon invokes the fact that other institutions — namely, Congress and/or the FEC — have the power to fill any regulatory gaps that might emerge from the Court’s striking down the aggregate contribution limits. Some critics of the decision excoriate the Court for invoking the power of Congress or the FEC to act, based on what I call the “institutionally realist” view that it is unlikely that eith…

Continue reading
Share

Harvard Law and Policy Review Publishes Symposium Issue: Elections In America

Volume 8-1 of the HLPR. Symposium: Elections in America Foreword, Congressman John P. Sarbanes & Raymond O’Mara III Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform, Richard L. Hasen  Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote , James Blacksher & Lani Guinier  Responding to Shelby County: A Grand Election Bargain, Daniel P. Tokaji Redistricting Reform and the…

Continue reading
Share

“Formulating Voting Rights Act Remedies to Address Current Conditions”

Barry Edwards has written this article for American Politics Research. Here is the abstract: The U.S. Supreme Court’s recent decision to strike down a key component of the 1965 Voting Rights Act (VRA) closes one of the most successful chapters in the history of civil rights enforcement. Our country has changed since 1965 and it is an opportune time to examine current political conditions for minority voters. Based on analysis of congressional el…

Continue reading
Share

“Shelby and Section 3: Pulling the Voting Rights Act’s Pocket Trigger to Protect Voting Rights after Shelby County v. Holder”

Paul Wiley has posted this draft student note on SSRN (forthcoming, Washington and Lee Law Review).  Here is the abstract: The Supreme Court’s decision in Shelby County v. Holder presents voting rights advocates with a difficult challenge: finding an effective substitute for the preclearance regime struck down by the Court. The best possible alternative may live within the Voting Rights Act itself in Section 3(c)’s “pocket trig…

Continue reading
Share

Thomas Alone on Campaign Finance?

I have written this oped in the Daily Journal (reprinted with permission). It begins: Justice Clarence Thomas is not afraid to go it alone at the Supreme Court. In Citizens United v. Federal Election Commission, the 2010 case striking down the law preventing business corporations from spending money from their general treasury on elections, the vote was 8-1 in favor of a disclosure law also challenged by the plaintiffs. Thomas also was alone in…

Continue reading
Share

Top Recent Downloads in Election Law on SSRN

Here: RECENT TOP PAPERS for all papers first announced in the last 60 days 4 Feb 2014 through 5 Apr 2014 Rank Downloads Paper Title 1 167 Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder James Uriah Blacksher and Lani Guinier Attorney at Law and Harvard Law School Date posted to database: 24 Feb 2014 Last Revised: 24 Feb 2014 2 92 The 2013 Philippine M…

Continue reading
Share

Are Things Getting Better with Restrictive Voting Laws? The Answer is Unclear

I’ve spoken to a number of reporters in the last few weeks doing stories on whether the wave of restrictive voting laws coming out of mostly Republican legislatures seems to be cresting, and perhaps the situation is becoming better. Based upon this new Pam Fessler NPR story, it appears to be a point of view pushed by the Brennan Center. Like Pam, I’m not so sure that’s right. As I’ve chronicled, the 2012 elections saw bot…

Continue reading
Share

Re: From the Hobby Lobby oral argument: Should legislation passed by unanimous vote be invalidated or narrowly construed?

Will Baude’s Washington Post piece raises an interesting significance-of-the-legislative-process question. While Will (and the Court) frames the issue in constitutional terms, it has obvious statutory interpretation implications as well. Just a few things that popped out at me while reading Will’s piece: 1. On Justice Scalia’s Shelby County v. Holder comment that the unanimous vote in favor of renewing the VRA was about the “perpetuation of raci…

Continue reading
Share

“After Shelby County: Getting Section 2 of the VRA to Do the Work of Section 5″

Chris Elmendorf and Doug Spencer have written an important new paper that voting rights folks need to read: Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, lowcost tool for blocking potentially discriminatory changes in election law and administration. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome an…

Continue reading
Share

Justice Scalia’s Interesting Views of Shelby County and the “Equal Sovereignty” Principle

Eric Segall has an important guest post at Dorf on Law about a recent constitutional law conference in Atlanta.  Read the whole thing.  But for ELB purposes, the end is the most interesting, about a Q&A session with Justice Scalia where the Justice answered questions written on index cards: The very next unsigned question was one that I had written. I asked him how he could sign on to Justice Roberts’ opinion in the recent voting rights case…

Continue reading
Share

DOJ Shifts Voting Section Priorities after Shelby County Guts Section 5

From DOJ’s budget submission to Congress (p. 44): Because of the Shelby County case, the Voting Section’s work will necessarily shift to greater affirmative efforts to detect and investigate voting practices that violate federal law, to more affirmative litigation to enjoin such practices, and to additional monitoring of elections throughout the country each year. Resources previously devoted to Section 5 reviews are being shifted to moni…

Continue reading
Share

On the Road to Arguing for the Unconstitutionality of Section 2 of the Voting Rights Act

I’ve been sounding this alarm for a while, beginning with leading up to the Shelby County oral argument.  Opponents of the constitutionality of Voting Rights Act Section 5 made the claim, among others, that Section 5 was no longer necessary to protect minority voting rights because other provisions of the Act, including Section 2, would do that work.  Yet some of the very constitutional arguments against Section 5 (such as the argument tha…

Continue reading
Share

“Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder”

James Blacksher and Lani Guinier have posted this draft on SSRN (forthcoming, Harvard Law and Policy Review).  Here is the abstract: The “equal sovereignty” principle the Supreme Court majority relied on in Shelby County v. Holder to strike down the coverage formula in Section 4 of the Voting Rights Act is rooted in the jurisprudence of slavery. In the infamous 1857 case of Dred Scott v. Sandford, Chief Justice Roger Taney held that…

Continue reading
Share

Senator Ted Cruz Distorts Supreme Court’s Voting Rights Holding

By all indications Sen.Ted Cruz is a brilliant lawyer. So I take his mischaracterizing of the Supreme Court’s Shelby County case as being disingenuous and not simply misguided. Sen. Cruz writes: It is disturbing that new efforts are being made in the House and Senate to resurrect voting rules that were recently deemed unconstitutional by the Supreme Court. We should protect the civil rights of every American, and other sections of the Voti…

Continue reading
Share

Coming Late Summer: Legislation, Statutory Interpretation & Election Law: Examples & Explanations

I’ve turned in a completed first draft of this book, with the hopes that it will be out in time for fall classes. This book, part of Aspen’s great Examples & Explanations series, is a student-friendly treatise with questions and answers throughout the chapters testing the material. This book is designed to be a supplement in classes on Legislation, Statutory Interpretation, Election Law, Voting Rights, or Campaign Finance. It is…

Continue reading
Share

“Justice Ginsburg’s Umbrella”

Ellen Katz has posted this draft on SSRN (forthcoming, A Nation of Widening Opportunities? The Civil Rights Act at Fifty, Samuel Bagenstos and Ellen Katz, eds., University of Michigan Press, 2014).  Here is the abstract: This Essay relies on an analogy pressed in the dissenting opinion in Shelby County v. Holder to describe an increasingly prominent conception of federal anti-discrimination law. It is a conception that sees the existing regime t…

Continue reading
Share

DOJ Changes Its Page Describing Section 5 of the Voting Rights Act

On February 17 I noted that the DOJ page on Section 5 gave no indication that Shelby County had been decided and that section 5 was no longer being enforced against previously covered jurisdictions. The page has now been updated, with a top section reading:   The Shelby County On June 25, 2013, the United States Supreme Court held that it is unconstitutional to use the coverage formula in Section 4(b) of the Voting Rights Act to determine…

Continue reading
Share