“Voter Purge Rates Remain High, Analysis Finds”

Brennan Center: Using data released by the federal Election Assistance Commission (EAC) in June, a new Brennan Center analysis has found that between 2016 and 2018, counties with a history of voter discrimination have continued purging people from the rolls at much higher rates than other counties.This phenomenon began after the Supreme Court’s 2013 ruling in Shelby County v. Holder, a decision that severely weakened the protections of the…

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Breaking: In Major Decision, 3-Judge Federal District Court Unanimously Rejects Motion to Put Texas Back Under Federal Supervision over Voting, Despite Continuing Concerns About Texas’s Intentional Racial Discrimination

A three-judge federal district court, which earlier had found that Texas engaged in intentional racial discrimination against African-Americans and Latinos in passing its 2011 redistricting plan has refused to put Texas back under federal supervision for voting. Before the Supreme Court’s 2013 decision in Shelby County v. Holder, Texas had to submit all changes in its voting rules for federal approval (or preclearance) before making…

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Director of National Intelligence Creates “Election Threats Executive”

Shelby Pierson gets the nod for a new federal position to serve as the intelligence community’s principal advisor on election security. This bio fits the very general description in the DNI’s press statement, but I’ll confess I’m not sure if they’re the same person.  As someone often confused with another southern California researcher with the same name who also works on redistricting (hi, Justin!), I’m wary of making assumptions….

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Guy Charles and Luis Fuentes-Rohwer: Rucho: Democracy and Banality (Rucho symposium)

The following is a guest post from Guy Charles and Luis Fuentes-Rohwer, part of the symposium on Partisan Gerrymandering after Rucho: One would be hard-pressed to find a more hackneyed Supreme Court opinion than Chief Justice Roberts’s majority opinion in Rucho.  It is replete with mis-directions, such as the boogeyman of proportionality when the plaintiffs expressly eschewed proportional representation as an end; unburdened by its…

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Realism and Formalism in Rucho

In a nice post about the Court’s Census decision, Rick Pildes noted that Chief Justice Roberts approached the case in a realist fashion, probing beneath the surface to figure out what actually did and would happen. This realism was entirely absent in the Court’s other end-of-term blockbuster. In Rucho, Roberts was as pure a formalist as can be imagined. He explained that several institutions other than the Court could do something about…

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Sam Issacharoff: When Constraint Fails (Rucho Symposium)

The following is a guest post from Sam Issacharoff, part of the symposium on Partisan Gerrymandering after Rucho: The 33-year search for judicial standards in partisan gerrymandering cases came to a crashing conclusion this Term.  As Justice Kagan noted in dissent, there is more than a touch of irony that the declaration of judicial incapacity by the Supreme Court arrives just as lower federal courts and some state courts had converged on…

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“Tennessee Advances Bill That Could Make It Harder to Register New Voters”

NYT: Tennessee lawmakers passed a bill through the state House on Monday that would fine community groups that submit incomplete voter-registration applications, an unusual move that the bill’s opponents have denounced as voter suppression. Protesters swarmed the State Capitol to speak out against the Republican-backed bill, which has drawn condemnation from voting rights advocates and Democratic lawmakers, who say it would discriminate…

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Today’s Must-Read: Jacob Levy at Niskanen on Republicans’ Fear of Democracy

Jacob Levy: A favorite reply to the complaint about the Electoral College outcomes is to note that campaign strategies are endogenous to the electoral rules, and that it is impossible to infer what would have happened if both campaigns had been trying to win the popular vote instead. That reply is probably right as to 2000, when the popular vote margin was .5 percent and candidate popularity as measured by opinion polls was essentially tied….

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Democrats Put Forward Bill to Restore the Preclearance Provisions of the Voting Rights Act (Killed by the Supreme Court in Shelby County) to 11 States, Including California

The Guardian: But Sewell and her colleagues are playing a long game in the hope that Democrats, should theyregain control of the White House and both chambers of Congress as they did most recently in 2008, would then be able to drive HR4 into law. In anticipation of that day, and in expectation that it would then be rigorously opposed by Republicans through the courts, she is working with peers on the judiciary and house administration…

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“The Voting Rights Act is in tatters. Let’s honor King’s legacy by saving it.”

David Gans in WaPo: Today, the Voting Rights Act that King helped to push through Congress is in tatters. To stop voting discrimination, the Voting Rights Act created strong remedies applicable to jurisdictions with a long history of flouting constitutional guarantees. Such jurisdictions would have to “preclear” new voting changes and prove they were nondiscriminatory before enforcing them. In 2013, in a 5-4 ruling in Shelby County v. Holder,…

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Levitt: Performance Standards and Design Standards in New Election Legislation

In collaboration with Take Care, Election Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process. Justin Levitt As the all-star lineup of other commentators in this magnificent mini-symposium have mentioned, the prospects for federal voting rights legislation to move in a divided Congress in this political moment are … slim. Really, really, really slim. There should be some room…

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Tokaji: A Grand Election Bargain That Everyone Should Support

In collaboration with Take Care, Election Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process. Election reform is back on Congress’s agenda. Having won control of the U.S. House, Democratic leaders have said that their first item of business will be a bill that removes obstacles to voting and otherwise improves the electoral process. H.R. 1 would reportedly include liberalized…

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Gans: How Congress Can Use Its Constitutional Powers to Guarantee Voting Rights for All

In collaboration with Take Care, Election Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process. Post from David Gans: The 2018 election was rife with voter suppression. States invented new roadblocks to voter registration, aggressively purged citizens from the voting rolls, closed hundreds of polling places in areas where voters of color reside, and imposed new, stricter voter…

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Crum: The House Should Pass an Effects-Test Bail-in Provision

In collaboration with Take Care, Take Election Law Blog is pleased to present a series of posts offering thoughts on legislation to reform the U.S. electoral process. Post from Travis Crum: Things have changed in the South since Shelby County. And not for the better. After the Supreme Court struck down the Voting Rights Act’s coverage formula in June 2013, several previously covered jurisdictions passed discriminatory election laws. Perhaps…

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“How Democrats Can Reverse Years of Voter Suppression. It doesn’t require packing the Supreme Court.”

I have written this piece for Slate. It begins: Faced with the latest flurry of hardball Republican tactics on voting issues this election cycle, Democrats are grappling with the reality of an opposition that now seems determined to cement long-term minority rule. In order to combat this dynamic, progressives need a plan of their own for the next time they control both houses of Congress and the presidency. The single best step that Democrats…

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“Black Voter Group Wins In Voter Registration Case In Memphis”

TPM: A state court judge in Tennessee ruled Thursday that Shelby County, which contains Memphis, must let voters whose registrations were stalled due to incomplete information to vote with regular ballots on Election Day, once the deficiencies are corrected. The ruling came in a case brought by the Tennessee Black Voter Project, which saw thousands of registrations forms it turned in deemed incomplete by the Shelby County Elections Commission….

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“Raising Red Flags about Shelby County”

Travis Crum at Take Care: If you’re a voting rights advocate or a law review editor, you might have noticed something different on Westlaw. After the Supreme Court invalidated the Voting Rights Act’s coverage formula in Shelby County v. Holder, Westlaw displayed a “red flag” on four previous decisions upholding the VRA, including South Carolina v. Katzenbach, which famously established the rationality standard for Congress’s Fifteenth Amendment…

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“Civil Rights Groups Sue Georgia Secretary of State Brian Kemp to Cease Discriminatory ‘No Match, No Vote’ Registration Protocol”

Release via email: Today, the Lawyers’ Committee for Civil Rights Under Law and its partners filed a major lawsuit against Secretary of State Brian Kemp over the state of Georgia’s discriminatory and unlawful “exact match” voter suppression scheme. The suit alleges that Georgia’s ‘no match, no vote’ voter registration scheme violates the Voting Rights Act, the National Voter Registration Act, and the First and Fourteenth…

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Crum: The Prospect of Bailing-in Texas: Strategic Considerations (5)

This is the fifth and final in a series of posts by Travis Crum: As my previous posts have made clear, Texas is eligible for bail-in for its unconstitutional conduct during the 2011 redistricting cycle. But there are strategic risks in seeking this high-profile bail-in rather than using a smaller, county-level jurisdiction as a test case at the Court. The fact that Texas has already won in the Supreme Court twice in this litigation is not…

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Crum: The Prospect of Bailing-in Texas: The Constitutional Argument for Bail-in (4)

This is the fourth in a series of guest posts by Travis Crum: As I discussed in my previous post, Texas’s conduct during the 2011 redistricting cycle qualifies it for bail-in. But as is often true in election law, this case raises novel constitutional questions. The first question is whether a Shaw violation can trigger bail-in. The second question is whether Section 3(c) remains constitutional after Shelby County. I’ll start with Shaw. In the…

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Crum: The Prospect of Bailing-in Texas: The Statutory Argument for Bail-in (3)

This is third in a series of guest posts by Travis Crum: In my last post, I provided an overview of recent bail-in cases. Now I will argue why Texas qualifies for bail-in under Section 3(c). Given the very long and complex history of this redistricting litigation, a quick timeline is helpful. Following the 2011 Census, Texas enacted new redistricting plans. At the time, Texas was a covered jurisdiction and thus sought preclearance from the U.S….

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Crum: The Prospect of Bailing-in Texas: Recent Bail-in Litigation (2)

This is the second in a series of guest posts by Travis Crum: In this series of posts, I’m addressing the statutory, constitutional, and strategic issues surrounding a potential bail-in of Texas. But before we dive into this ongoing redistricting litigation, I’ll begin by discussing recent bail-in cases that will influence how this litigation will proceed. In the past few years, a wave of Section 3(c) bail-in suits have been filed across the…

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Crum: The Prospect of Bailing-in Texas: Initial Thoughts (1)

The following is the first of five guest posts from Travis Crum on Bailing in Texas to voting rights preclearance: The three-judge district court overseeing the long-running Texas redistricting litigation recently ordered the parties to brief whether the State should be “bailed-in” under Section 3(c) of the Voting Rights Act for its unconstitutional conduct during the 2011 redistricting cycle. Section 3(c) authorizes courts to place States and…

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“U.S. Commission on Civil Rights Releases Report: An Assessment of Minority Voting Rights Access in the United States”

Release: Today, the U.S. Commission on Civil Rights released its report, An Assessment of Minority Voting Rights Access in the United States. Based on extensive research and expert and public testimony, the report assesses minority voter access around the country, and evaluates the Department of Justice’s enforcement of the Voting Rights Act (VRA) since 2006, in particular after the Supreme Court’s Shelby County v. Holder decision. In Shelby

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“Brett Kavanaugh gave a troubling answer to Sen. Kamala Harris’ question on the Voting Rights Act”

Think Progress: Kavanaugh, for his part, tried to downplay the significance of Shelby County. “There is still, of course, Section 2 of the Voting Rights Act,” the nominee explained. That provision “allows litigation brought by plaintiffs to challenge voter restrictions that are enacted with discriminatory intent or discriminatory effects.” Thus, so long as Section 2 remains good law, a voting rights plaintiff can prevail if they show that a…

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“Brennan Center Sues Justice Department for Refusing to Disclose Documents Related to Controversial Voting Letter”

Release via email: The Brennan Center for Justice at NYU School of Law is suing the Justice Department today for refusing to turn over documents related to a controversial letter DOJ sent last year, which sought detailed information about how states maintain their voter rolls. Voting rights groups are concerned that it could be a prelude to pressuring states to engage in aggressive voter purges — the often-flawed process of deleting names from…

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Experts on Judge Kavanaugh and Election Law

From Politico, here are some excerpts on how his confirmation would affect election law and democracy: Geof Stone: “Across the entire spectrum of critical constitutional issues – ranging from abortion to gay rights to affirmative action to gerrymandering to campaign finance to the regulation of guns and beyond – they will now hold a majority. This is a stunning victory for partisan judicial decision making, and a stunning defeat for the…

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Texas redistricting ain’t over yet

Just before the holiday, Rick posted a Texas redistricting update: the trial court issued a briefing order asking what’s left of the case after SCOTUS remand. Rick thought “there’s not much left to do.” But while most of the fireworks may be over, the few remaining may have a pretty big bang. He’s right that there’s little fight left over in the current maps. One district – State House District 90, in Fort Worth – has to be redrawn (and,…

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“How Justice Kennedy’s Successor Will Wreak Havoc on Voting Rights and American Democracy”

I have written this piece for Slate. It begins: Justice Anthony Kennedy, who announced his retirement from the Supreme Court last week, was certainly the “swing justice” in key cases on major issues from abortion to gay rights. But when it came to election law, Justice Kennedy didn’t swing: He consistently sided with conservatives and the Republican Party on the most important cases of the day. Still, I fully expect issues from voting rights to…

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“Neil Gorsuch Declares War on the Voting Rights Act”

Mark Joseph Stern for Slate: What may be most remarkable about Monday’s decision in Abbott v. Perez, however, is Justice Neil Gorsuch’s effort to position himself as a fierce opponent of the Voting Rights Act. The Supreme Court already gutted a central provision of the VRA in 2013’s Shelby County v. Holder. Now, in Perez, Gorsuch has joined Justice Clarence Thomas’ crusade to hobble the law even further by holding that it does not prohibit…

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“Suppression of Minority Voting Rights Is About to Get Way Worse; The Supreme Court has put its thumb on the scales in favor of discriminatory states.”

I have written this piece for Slate. It begins: On Monday, five years to the day that the Supreme Court decided Shelby County v. Holder, a case in which the court struck down a key provision of the Voting Rights Act with assurances that other parts of the act would still protect minority voters, the court proved those assurances false in Abbott v. Perez. In Abbott, the Roberts court on a 5–4 vote eschewed the judicial minimalism it has used to…

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Five Years After Shelby County, A Look Back

Almost exactly five years ago I wrote a NY Times oped about the Supreme Court’s unfortunate decision striking down a key portion of the Voting Rights Act in Shelby County: The Chief Justice’s Long Game. This part held up pretty well: Today’s decision has real consequences. Chief Justice Roberts writes that ”regardless” of how we look at the record, “no one can fairly say it shows anything approaching the ‘pervasive,’ ‘flagrant,’…

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“Scalia’s Goal Of Unwinding Voter Protections Is Becoming A Reality”

[bumping to the top given the upcoming Tuesday argument in the Texas redistricting cases] I have written this piece for TPM Cafe. It begins: In a Supreme Court term already bursting with election cases, from two partisan gerrymandering disputes to a fight about the permissibility of Ohio’s voter purges to a lawsuit challenging bans on political clothing in Minnesota polling places, it’s easy to overlook yet another significant voting appeal the…

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“‘We’ve been disenfranchised’: Republicans in San Juan County say redrawn voter districts unfairly favor Navajos”

Salt Lake Tribune: “I feel like we’ve been disenfranchised,” said Robert Turk, 57. It was the shared sentiment Thursday at the first GOP convention in San Juan County since a federal judge redrew the boundaries to give Navajos, who tend to affiliate as Democrats, a significant majority of voters in two of three commission districts and three of five school board seats. The decision was meant to reverse the historic political domination by…

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Foley: Shelby County, Structural Originalism, and Congressional Gerrymanders

The following is the fourth in a series of guest posts on Benisek v. Lamone by Ohio State’s Ned Foley. Edward B. Foley This blog essay is the fourth in a series derived from a contribution to a University of Georgia Law Review symposium, building upon the first , second , and third installments. In the previous post in this series, I explained how an originalist approach to constitutional interpretation leads to the conclusion that partisan…

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“Memphis City Council quietly works on anti-instant runoffs bill”

Gannett: The Memphis City Council worked behind the scenes to find a sponsor for legislation this year that could ban instant-runoff elections statewide and forestall the Shelby County Election Commission from using the method for the first time in 2019. The council recently instructed The Ingram Group — a well-connected, Nashville-based lobbying firm the council hired for $120,000 per year in November — to ask Republican Sen. Ken Yager of…

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Yale Law Journal Forum symposium: Five Years After Shelby County v. Holder: The Ongoing Fight for Voting Rights

Can’t wait to read all of these: VOLUME 127 2017-2018 COLLECTION Five Years After Shelby County v. Holder: The Ongoing Fight for Voting Rights 08 FEB 2018 In the five years since Shelby County v. Holder, voting rights litigators have resorted to other claims under the Voting Rights Act. This Collection traces these litigation strategies—focusing on Sections 2 and 3—and introduces “vote dissociation,” which recognizes systemic problems of…

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“Black Turnout in Alabama Complicates Debate on Voting Laws”

Important NYT read: But research, particularly of voter ID laws in Texas, Wisconsin and other states, provides an imprecise picture of how much similar laws suppress turnout. And Eitan Hersh, a Tufts University political scientist who contributed to the analysis of Texas’ strict voter ID law, said research indicated that voter ID laws could alter very close elections but might not be as influential as some critics claim. “These laws are…

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New Lawsuit by Ed Blum Attacks Constitutionality of California Voting Rights Act

Here is the complaint and here is the press release. Blum is the force behind the Shelby County cases (killing a key part of the Voting Rights Act) and various attacks on affirmative action. There was an earlier, unsuccessful challenge to the CVRA years ago, but this one seeks to take advantage of the Supreme Court’s racial gerrymandering line of cases. The CVRA goes beyond what is required by Section 2 of the (federal) Voting Rights Act,…

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With Justice Kennedy Seriously Considering Being the 5th Vote to Rein in Partisan Gerrymandering, The Chief Justice Worries About the Political Thicket

Before oral argument I explained that the vote in Gill v. Whitford is likely to come down to Justice Kennedy, with the Court’s four liberal Justices voting to rein in partisan gerrymandering and the four conservatives voting against it. From today’s oral argument transcript, this dynamic appears to be true (apart from Justice Thomas, who did not speak, but who joined Justice Scalia’s plurality opinion in Vieth in 2004 arguing…

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“Litigating the Line Between Past and Present; The Supreme Court is about to take up another blockbuster voting rights case. At its core is a struggle over the limits of history.”

Sara Mayeux for Bunk History: How past is the past? That quandary, among the definitional puzzles of the human condition, is also the crux of the voting rights battles currently rending statehouses and federal courts around the country. Election law is an intricate tangle of constitutional doctrine, federal statutes and regulations, state laws and procedures, and local practices. It’s among the most complicated of legal specialties. And yet the…

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The Connection Between Voting Rights and Sports Betting?

Ryan Rodenberg and John Holden have posted this draft on SSRN. Here is the abstract: We find PASPA’s partial and non-uniform ban on state-sponsored sports wagering to run afoul of the equal sovereignty doctrine’s general constraints as set forth in Shelby County and Northwest Austin. PASPA also fails equal sovereignty scrutiny for two other narrower reasons. First, for a law motivated to address a “national problem” with no geographic borders,…

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“Ballot Blocked: The Political Erosion of the Voting Rights Act”

New book from Jesse Rhodes: Voting rights are a perennial topic in American politics. Recent elections and the Supreme Court’s decision in Shelby County v. Holder, which struck down key enforcement provisions in the Voting Rights Act (VRA), have only placed further emphasis on the debate over voter disenfranchaisement. Over the past five decades, both Democrats and Republicans in Congress have consistently voted to expand the protections…

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