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Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
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Barnes and Noble
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Search Results for: shelby
Justin Levitt has posted this draft on SSRN (Yale Law Journal Online). Here is the abstract:
In addition to its remarkable substantive impact, Section 5 of the Voting Rights Act is a provision of enormous expressive and historical importance. But the extent to which the statute is also a symbol has some unrecognized downsides. In the current Shelby County litigation, reviewing a challenge to section 5, much of the argument seems to revolve around a simulacrum of section 5, rather than the statute itself. This simulacrum is much like an editorial cartoonist’s rendering of a political figure, in which particular features take on exaggerated salience. Many elements of the simulacrum have at least the ring of truth, which helps to explain the staying power of the image. But though the cartoon version of the preclearance regime resembles the original, the exaggerated features—including preconceived notions of the obsolescence of the regime’s primary operating system, the extent to which it fosters racial essentialism, and its place within our federalist structure—distort rather than clarify our understanding of the legality of the portions of the Voting Rights Act at issue. This short Essay investigates some of the more striking elements of the section 5 simulacrum, contrasting the cartoon vision of section 5 with the more fully contextualized operation of the actual statute.
Joey Fishkin has posted this draft on SSRN (Yale L.J. Online). Here is the abstract:
The plaintiffs in Shelby County v. Holder argue that section 5 of the Voting Rights Act should be struck down because it offends the “equal dignity” of the covered states — an argument the Court appeared to credit in its last brush with section 5 in NAMUDNO. This Essay, written in advance of the decision in Shelby County, critically examines this equal dignity of the states argument and situates it in a larger context. Americans have been fighting for 150 years, since the Civil War and Reconstruction, about the structural implications of the events of 1861–70 for the sovereignty, dignity, and equality of the states — and of the Southern states in particular. The equal dignity of the states argument thus stakes a claim on the meaning of the Civil War and Reconstruction in American historical memory, a claim whose implications are problematic and profound,
Chris Elmendorf and Doug Spencer have posted this draft on SSRN, and it is potentially relevant to the Shelby County Voting Rights Act case pending before the Supreme Court. Here is the abstract:
The geography of voter discrimination—that is, the tendency of voters within different geographic units to discriminate against minority candidates on the basis of the candidate’s race—is of central importance to the adjudication of claims under Section 2 of the Voting Rights Act, and to the constitutionality of Section 5. To date, however, efforts to create fine-grained estimates of the geography of voter discrimination have been hindered by the modest sample sizes of national surveys. Using multilevel regression with post-stratification, we create estimates of anti-black stereotyping at the state and county level, and we show how these estimates can be used to evaluate (or redesign) the coverage formula for Section 5 of the Voting Rights Act, and to implement Section 2. Among our principal conclusions is that the coverage formula for Section 5 is remarkably well tailored to the geography of anti-black prejudice. If the Supreme Court invalidates the coverage formula in Shelby County v. Holder, Congress could re-enact a substantially similar formula on the basis of our findings. Note to readers: due to some delays in obtaining data, we are not able to include county-level results in this draft. We are posting this incomplete draft because of the timeliness of the state-level results for Shelby County and potential congressional responses.
Richard Wolf reports for USA Today on Shelby County and Fisher.
AP reports from Alabama.
The following press release arrived via email:
New York, N.Y.–“Home of the Brave,” a powerful, award-winning 2004 documentary about murdered civil rights activist Viola Liuzzo will be released digitally as the U.S. Supreme Court considers overturning critical aspects of the Voting Rights Act of 1965, the ground-breaking legislation that outlaws discriminatory voting practices. SundanceNow and New Video have scheduled widespread digital distribution with dates that overlap with this significant Supreme Court decision being made in June.
“The most potent weapon in fighting discrimination at the ballot box is before the Supreme Court in a case that weighs the nation’s enormous progress in civil rights against the need to continue to protect minority voters,” says Stockard Channing, narrator of “Home of the Brave.” “Viola Liuzzo’s story needs to be part of America’s social consciousness for many reasons, but is especially critical now, as the Supreme Court justices make their decision this June.”
The lawsuit from Shelby County, Ala. addresses Section 5 of the Voting Rights Act and says that federal oversight of elections is no longer needed. Section 5 requires 16 states with a history of racial discrimination in voting, primarily in the South, to clear election-related changes with the federal government. Section 5 is widely regarded as the most effective provision of the country’s most important civil rights law.
“She wanted equal rights for everyone, no matter what the cost!” 14-year-old Tommy Liuzzo, 1965
Liuzzo, the 39-year-old wife of a Detroit Teamster and mother of five, joined thousands of civil rights protesters in Selma, Ala. for the Voting Rights March in 1965, only to be gunned down in a drive-by shooting on a deserted highway as she shuttled marchers back and forth to the airport. The murderers were members of the Ku Klux Klan, one of whom, Gary Thomas Rowe, was an FBI informant. Despite a slanderous investigation headed by J. Edgar Hoover, Liuzzo’s death – the only white woman killed during this long struggle – became the catalyst for President Lyndon Johnson’s push to pass the Voting Rights Act of 1965.
Many Americans have never heard Liuzzo’s name or story, making “Home of the Brave” extremely timely and relevant. Amazon Instant Video, PlayStation, Xbox Video, Vudu, YouTube Rentals and SundanceNow will release “Home of the Brave” on May 7. The documentary’s release will expand to include Netflix, SnagFilms and Hulu on June 7. The educational distributor Bullfrog Films, Inc., a long-time advocate for the film, is actively promoting the documentary to their broad list of libraries and universities.
“The entire struggle of that era was about the Voting Rights Acts, says Mary Lilleboe, daughter of Viola Liuzzo. “American citizens have and had the Constitutional right to vote. All the bloodshed, tears and lives lost were in a struggle to get the federal government to ensure this right was not tampered with by anyone in any way. This movie is about the struggle to exercise our right, the cost to guarantee it and the people who paid the price. The very attempt to repeal this legislation forewarns of the danger in doing so and tears at the hearts of those who lived through it.”
“Home of the Brave” premiered in competition at Sundance in 2004. The film was distributed theatrically by Emerging Pictures and on television by Court TV. Image Entertainment handled DVD sales and Bullfrog Films distributes to the educational market, including schools and museums. The critically acclaimed documentary was short-listed for the 2005 Academy Awards. The film won the Chicago International Film Festival Silver Lion Award as well as the Social Justice Award at the Santa Barbara International Film Festival. It also received a Writer’s Guild nomination for Best Documentary Screenplay, Best Documentary Award at the Port Townsend Film Festival, Best Feature Documentary nomination for the 2004 International Documentary Association Awards, the Joan Phillips-Sandy Award for excellent film with social message in Maine and 1st runner-up for the Audience Choice at the Cleveland International Film Festival.
Sundance and iTunes has “Home of the Brave” available for pre-orders:
Gary May has written this WaPo oped. It begins: “In the debate over the future of the Voting Rights Act , it sometimes becomes apparent that certain members of the Supreme Court are either oblivious to our nation’s recent history or willfully ignore it. Justice Antonin Scalia made this abundantly clear in his comments during the Feb. 27 oral argument in Shelby County v. Holder , statements that he repeated in a speech on April 15.”
Anchorage Daily News: “The Alaska Redistricting Board has gone once again to the Alaska Supreme Court, this time asking the justices to clarify whether an earlier ruling requires it to redraw all of Alaska’s legislative districts from scratch.”
MORE: “Torgerson, a former state senator from Kasilof, said the board was waiting out a decision by the U.S. Supreme Court in a case brought by Shelby County, Ala., challenging a section of the U.S. Voting Rights Act. The case could affect Alaska because like Shelby County, the entire state of Alaska must get authorization from the U.S. Justice Department before making any changes to its voting system, including redistricting.”
News from Alabama.
This is a post for instructors who will be teaching a course on Election Law in the fall. Dan Tokaji and I will soon begin work on the 2013 supplement to Lowenstein, Hasen, and Tokaji, Election Law–Cases and Materials (5th ed. 2012). The edition will be posted free online for use by instructors (and their students) who assign the casebook.
The Supreme Court’s expected decisions in the Shelby County case involving the constitutionality of section 5 of the Voting Rights Act and the argument coming next term in the campaign finance case of McCutcheon v. FEC are among the developments we expect to cover in the 2013 supplement.
If you are an instructor, use the link above to request a free review copy of the casebook.
Supreme Court Justice Antonin Scalia told university students that key provisions of the Voting Rights Act had evolved from an emergency response to racial discrimination in 1965 to an “embedded” form of “racial preferment” that would likely continue indefinitely unless the court acts to end them.
Justice Scalia, speaking Monday night at the University of California Washington Center, elaborated on remarks he made in February during Supreme Court arguments over the act’s Section 5, which requires states and localities that historically discriminated against minority voters to obtain federal approval to change election procedures.
Section 5 functions as a racial entitlement because the federal government doesn’t take a similar interest in protecting the voting rights of white people from racial discrimination, Justice Scalia said.
The remarks are not much different from what Justice Scalia said at oral argument in the Shelby County case, but I find it pretty remarkable that he’d make these comments off the bench while Shelby County remains pending.
UPDATE: It gets worse, as Justice Scalia appears to tip his hand on how he’s voting in an upcoming case.
The petition garnered a lot of attention, including in a Sidebar column from Adam Liptak, no doubt it because it was backed by Edward Blum, who successfully brought the Fisher affirmative action case and Shelby County and NAMUDNO voting rights cases to the Court.
But I had been skeptical the Court would take the case, A ruling that jurisdictions could not count “all persons” for purposes of redistricting and must exclude non-citizens would have called into question thousands of districting plans across the country, and it was a theory which seemed to be in direct conflict with the constitutional text.
Ellen Katz has written this important new article for Columbia Law Review’s Sidebar, the first in a series of essays on election law issues in the 2012 election. From the introduction:
Undeniably, things have changed. Opportunities for minority political participation in places like South Carolina have evolved since Congress first enacted the VRA. Supporters of the VRA readily acknowledge as much but argue that this evolution is less developed, more fragile, and more dependent on section 5’s continued operation than South Carolina and others siding with the petitioners in Shelby County maintain.5 The pending case accordingly presents the Court with competing narratives, one of a problem solved and, hence, a statute that has run its course, and another depicting a vulnerable work in progress that requires the sustained attention the VRA provides.
There is, nevertheless, an additional narrative the Justices should consider when they evaluate how far places subject to the VRA’s regional provisions have evolved. This narrative posits that section 5 is far from obsolete and operates not only as a restraint on the ill-intentioned, but also as an affirmative tool of governance. On this account, one of the VRA’s most critical, albeit least appreciated, functions is the way in which it helps public officials navigate complex contemporary questions concerning equality of opportunity in the political process.6
A good example of the VRA’s role in this regard is found in the recent dispute over voter identification (ID) in South Carolina. The “evolutionary process”7 through which voter ID came to be approved in South Carolina shows section 5 operating not only as a constraint, but also as a constructive mechanism for dispute resolution. In this capacity, section 5 helped produce a voter ID measure which, as one reviewing judge explained, “accomplishes South Carolina’s important objectives, while protecting every individual’s right to vote and . . . addressing the significant concerns” about the measure’s impact on minority voters.8
Let me begin with the caveat that it is always hazardous to predict what the Supreme Court is going to do from reports at oral argument (See, e.g., the health care case). That said, I want to explore what seems most likely to happen at this point with the Supreme Court’s term, and what it would mean. My best guess today is that Justice Kennedy will be in slim majorities reaching the following results: the Court will not recognize a right to same sex marriage in the California Proposition 8 case, although the means of doing so will likely leave a lower court ruling enjoining California from enforcing Proposition 8 standing; that the Court will strike down section 3 of the Defense of Marriage Act as an unconstitutional affront to traditional state power to define and regulate marriage; that the Court will hold that the coverage formula of section 4 of the Voting Rights Act is an unconstitutional affront to state sovereignty, leaving open the possibility that the Congress could rework a new coverage formula more closely tied to current evidence of intentional racial discrimination in the sates (something Congress will never do); and the Court will not issue a far-reaching decision in the University of Texas affirmative action case, leaving open some issues to be addressed in future cases in future terms, such as the Michigan case the Court just agreed to hear.
If this is the end result of the term, parts will make conservatives mad (such as striking down DOMA, and making the federal government pay same sex benefits to those whose same-sex marriages are recognized by their state) and parts will make liberals mad (such as effectively striking down a crown jewel of the civil rights movement, and failing to go all the way and recognize a constitutional right to same-sex marriage).
Justice Kennedy will probably feel pretty good about a term like this, and in the past he hasn’t minded being alone, in the middle, frustrating his colleagues on the left and the right. I think of his opinion in the partisan gerrymandering case of Veith v. Jubelirer, where his four conservative colleagues took the position that courts could not hear partisan gerrymandering claims (because they presented political questions with unmanageable judicial standards) and his four liberal colleagues offered a host of standards for reining in partisan gerrymandering, parading them in beauty pageant fashion for Justice Kennedy. Justice Kennedy took the position that the cases could be heard, but so far no one had come up with any standard to police the constitutionality of such gerrymandering. It was a somewhat inscrutable opinion—keeping the issue open to percolate some more and saying plaintiffs can come to court with these claims which they would continue to lose, until Justice Kennedy found a standard he liked (he still hasn’t).
So Justice Kennedy is fine with 4-1-4 splits on the Court (although some things he might do on standing could bring along additional votes—the Chief, for example, might go along with a decision to find that Prop. 8 initiative proponents have no standing rather than write or join a fiery dissent extolling the virtues of traditional marriage). The vision will be one of state’s rights, and defended in a kind of lofty language that treats the states as though they were people with feelings. Justice Kennedy’s nation is one in which Congress and the executive must defer to the power of states in a variety of spheres, intruding only when necessary and the means proportional (Justice Kennedy might say something similar to this in the Arizona voting case, about Congress’s ability to specify that states must accept what the federal government thinks is enough to prove an individual’s citizenship entitling her to vote).
The question will be whether, if we get the summer of Federalism, the other Justices will want to weigh in on the merits of issues that are likely to return to the Court at a later date. A Kennedy opinion holding section 3 of DOMA a violation of states’ rights might be joined by four other Justices in full or in result, with a concurring opinion reaching the merits of the right to gay marriage. Justice Ginsburg and others may want to come out against “skim milk” marriages. The same may happen in the Prop. 8 case. Even if the Court dismisses on standing grounds, or especially if the four liberal Justices and Kennedy join to dismiss the case as improvidently granted, it could well fall to Justice Scalia, Alito, or Thomas to write that fiery dissent extolling traditional marriage and rejecting a living Constitution and the evolution of norms of constitutional conduct.
In the Voting Rights Act case, Justice Kennedy would be joined by the conservatives in striking down the Act, and I am confident of a fiery dissent from the four liberal members. The big question will be how far a VRA strike would go: would it open up the door to cases challenging section 2 of the Act, or section 203 (the language provisions), or portions of the Civil Rights Act? Liberal justices may want to lay down a marker. Some of these questions might depend upon what the Court does in the affirmative action case, but the grant of cert in the Michigan case suggests these issues are still going to kick around the Court for a while before the end of affirmative action. If the Court rejects the University of Texas plan on race grounds, it would be the one major case where a constitutional right (here, the white applicant’s right to equal protection) which would trump the state’s right to decide on admission’s policy.
In the end, we’ll all be living in Justice Kennedy’s world. As we already are.
I have written this piece for Reuters Opinion. It begins:
Will Justice Anthony Kennedy’s support for a constitutional right to gay marriage doom the constitutionality of affirmative action and a key provision of the Voting Rights Act? To answer this question, legal scholars need to know less about constitutional law and more about human psychology.
Consider last year, when Supreme Court Chief Justice John Roberts, for example, surprisingly sided with the court’s four liberal members in upholding President Barack Obama’s healthcare law against constitutional challenge. It was a stunning choice for the conservative jurist. The reaction of Nate Persily, a leading U.S. election law scholar, was: “There goes the Voting Rights Act.”
At first, the connection between the two cases may seem tenuous. They don’t involve the same issues. The healthcare case was based on Congress’s power to regulate commerce and to tax. In Shelby County v. Holder, heard last month and expected to be decided in June, the court is considering whether Congress’s power to enforce equal rights, especially in voting, includes the power to continue federal oversight of elections in certain states that have a history of racial discrimination.
But Persily’s observation seems correct, and it illustrates how Supreme Court watchers often use amateur psychoanalysis of the justices. For example, a chief justice, feeling constrained by public opinion or concerned about the court’s legacy, may give in on one case in order to gain more political capital to spend on another controversial case.
That’s the suggestion in this New Yorker piece.
The Fisher affirmative action case before the Supreme Court was argued October 10. It is one of three cases from the October sitting not yet decided. It is certainly plausible it could be released on Tuesday or Wednesday, dates the Court is set to issue opinions next week (according to an Editor’s Note at the top of SCOTUSBlog.)
It turns out Tuesday and Wednesday are also the dates of the arguments in the gay rights cases: Prop 8 and DOMA. The same day release of the audio in these cases indicates, in the words of Adam Liptak, that they are the “biggest” cases of the term, more than Fisher or the Shelby County voting rights case.
Fisher may not be ready. But if the opinion is ready to roll, it would be an act of mercy for Supreme Court journalists if the Chief Justice holds it for a week.
The grilled shrimp appetizer had just arrived at the 128th annual press-pols Gridiron dinner Saturday night when NAACP President Benjamin Jealous fell into conversation with a fellow white-tied dinner guest about the Supreme Court’s recent argument over the Voting Rights Act.
The distinguished-looking gentleman told Jealous he thought the NAACP Legal Defense Fund lawyer, Debo P. Adegbile, had done a fine job arguing that the law needed to be continued.
Sure, but what happened to the solicitor general? Jealous wondered aloud, he was just awful.
Well, I am the solicitor general, Donald Verrilli Jr. replied.
Linc Caplan uses the incident to defend Verilli, and to argue that Justice Kennedy might like his “as applied” argument in the Shelby County case
This item appears on the ACLU’s “Blog of Rights.”
I have written this commentary for Slate. It begins:
A long-awaited report from the Department of Justice’s Office of the Inspector General issued last week sheds considerable light on the battles within the department’s voting section during the Bush and Obama administrations. The picture is not pretty. It is a tale of dysfunction and party polarization that could unfairly derail the nomination of the next secretary of labor and could even provide ammunition to Justice Antonin Scalia’s incendiary charge, made during the Supreme Court’s hearing on the constitutionality of the Voting Rights Act last month, that the civil rights law is a kind of “racial entitlement.” The sordid business raises serious questions about whether the whole model for the federal enforcement of voting rights should be reworked.
At this link. Tomorrow, you should be able to use the same link to find event video.
Extensive posting from Armand Derfner.
The Mirage of Racism: “Under the VRA as it currently stands, we have too much federal intervention too soon, for too long, and for too little cause. The Supreme Court should strike the VRA down and let Congress return to the drawing board for something better.”
Details here on what looks like a great event.
“I think by the time the debate is concluded, there will be a very bipartisan consensus that if there is an amendment needed to Section 5 to keep it viable, the votes will be overwhelming.”
—Representative Jim Sensenbrenner, on what will happen if the Court strikes down the coverage formula for Section 5 of the Voting Rights Act in the Shelby County case.
On Sunday, March 3, Representative John Lewis locked arms with Luci Baines Johnson and Vice President Joe Biden and marched across the Edmund Pettus Bridge here. Forty-eight years earlier, on “Bloody Sunday,” Lewis was badly beaten by Alabama state troopers at the foot of the bridge while attempting to march from Selma to Montgomery in support of voting rights. Eight days later, Luci’s father introduced the Voting Rights Act before a joint session of Congress. “When Lyndon Johnson signed the Voting Rights Act on August 6, 1965,” Lewis said, “he helped free and liberate all of us.”
Amy Howe: “That leaves, as it so often does, the vote of Justice Kennedy. And although at least one of his questions has been interpreted as signaling support for the law, for the most part his comments and questions left the overwhelming impression that he too would be inclined to rule in favor of Shelby County.”
Carvin, Hebert, Thernstrom and Lindenbaum discuss Shelby County at GW Law, moderated by Spencer Overton. Unfortunately closed to the press.
Her Opinionator column concludes:
The Roberts court stands on the brink of making an error of historic proportions. A needless and reckless aggrandizement of power in one case to satisfy the current majority’s agenda will erode the court’s authority over time.
But there was no sign from the majority last week of an appetite for stepping back this time, as the court did in its last confrontation with Section 5 four years ago. Justice Scalia – he who flaunts his refusal to join any portion of any opinion that cites legislative history – returned repeatedly to his view that manifest Congressional support for the Voting Rights Act was somehow illegitimate, not to be taken at face value. The problem was, he said, that members of Congress “are going to lose votes if they do not re-enact the Voting Rights Act.”
Justice Scalia, that’s called democracy.
Or it was.
Ilya Shapiro weighs in on the Chief Justice’s remarks in the Shelby County case, concluding: “To be clear, I’m not suggesting that Massachusetts is a hotbed of racism and should be subject to Section 5. Instead, I’m saying that Mississippi – the whole broader South – has changed, obviating the need, and therefore constitutional justification, for Section 5.”
Jon Stewart for his part weighed in on Northern racism: “Yeah, we’ve been to Boston.”
HuffPo reports. I’ve advocated making contingency plans now, because I expect there to be a political opening for new voting rights legislation if the Court strikes section 5 in Shelby County. I think Republicans will be looking for a way to militate against the negative fallout with minority voters if the five Republican-appointed Justices vote against this crown jewel of the civil rights movement.
I’ve also predicted that there will be a battle between the civil rights community and the election reform community over whether a new VRA should be race-based or not.
Justice O’Connor, in Daily Show Interview, Seemed to Not Know Shelby County Case Was About Section 5
Howard Bashman links to all three segments. In the first segment, before Justice O’Connor came on, Stewart had a lengthy attack on the Shelby County case, and included audio from Justices Sotomayor and Justice Scalia from last week’s oral argument (another nail in the coffin for cameras in the courtroom).
In the first of two segments with Justice O’Connor, Stewart asked about the Shelby County case, and it seemed that Justice O’Connor was not following the case even closely enough to know it was about Section 5. Very odd.
Justice O’Connor also refused to say whether there were any cases in which she regretted her decision. Yet she has in the past indicated her regret over her decision in Republican Party of Minnesota v. White, striking down a judicial speech rule under the First Amendment.
Politifact Rates as “Half-True” Chief Justice Roberts’ Statements About Miss., MA Voting Rates in Shelby County Case
The following is a guest post from Chris Elmendorf and Doug Spencer:
Are the Covered States “More Racist” than Other States?
Christopher S. Elmendorf
Douglas M. Spencer
During oral argument last week in Shelby County v. Holder, the constitutional challenge to Section 5 of the Voting Rights Act, Chief Justice Roberts asked, “[I]s it the government’s submission that the citizens in the South are more racist than citizens in the North?” Solicitor General Verrilli responded, “It is not, and I do not know the answer to that . . . .”
This post offers a preliminary answer to the Chief Justice’s question, using recent data. Our initial results suggest that the coverage formula of Section 5 does a remarkably good job of differentiating states according to the racial attitudes of their nonblack citizens.
There are essentially three schools of thought about how best to measure racial prejudice using survey questions. Some researchers favor explicit measures of prejudice (“old-fashioned racism” or stereotyping), based on agreement with statements like “blacks are less intelligent than whites” and “blacks are lazy.” Others favor symbolic measures of prejudice or “racial resentment,” based on questions about affirmative action and whether blacks have gotten “more than they deserve.” Still others favor measures of implicit or subconscious bias. For the results reported here we use explicit stereotyping, as it remains disputed whether racial resentment measures capture prejudice as opposed to conservatism, and it is uncertain whether implicit bias predicts political behavior.
We created a binary measure of stereotyping that roughly captures whether a person is more prejudiced toward blacks than is typical of nonblack Americans. Our data source is the 2008 National Annenberg Election Survey (NAES), which asked non-black respondents to rate their own racial group and blacks in terms of intelligence, trustworthiness, and work effort, on a scale of 0-100. On average respondents ranked their own group about 15 points above blacks on each trait. We coded respondents as holding “prejudiced” views with respect to blacks on a particular trait if the difference between their rating of their own racial group and their rating of blacks exceeded the national mean difference for the trait. To create an overall measure of prejudice for each respondent, we summed the number of traits on which the respondent was more prejudiced than the national mean. Finally, we converted this sum into a binary variable, coding as “prejudiced overall” those respondents who exceeded the national mean with respect to at least two of the three traits.
To be clear, a respondent whom we have coded as “not prejudiced overall” may well be quite prejudiced. But the Chief Justice’s question—whether “citizens in the South are more racist than citizens in the North”—is a question about relative prejudice, and this is what we are trying to capture.
We provide two estimates of the proportion of adult, nonblack residents in each state who are “prejudiced overall.” The first is based on simple disaggregation of the large NAES dataset (N=19,325). This method should work pretty well for the largest states but may yield unreliable estimates for smaller states, which contribute relatively few respondents to the NAES sample. For the second estimate we use multilevel regression with post-stratification (MRP), a recently developed statistical technique that has been shown to yield remarkably accurate estimates of state-level public opinion. We model prejudice as a function of individual-level covariates (sex, race, age, and education) and a set of state-level predictors (black population, percent of blacks in poverty, segregation, and income inequality).
Using either technique we find a strong positive correlation between Section 5 “covered status” and anti-black prejudice, but with MRP the correlation is truly stunning:
The MRP model suggests that the six fully covered states in the South are, by our measure, six of the seven most prejudiced in the nation. The two fully covered states that rank lower on the list, Arizona and Alaska, are presumably covered for reasons other than discrimination against blacks (anti-Latino discrimination in Arizona, and anti-Native discrimination in Alaska).
We wish to emphasize that these are preliminary results only. Though our findings are not entirely unexpected, other ways of aggregating the NAES prejudice questions, or of modeling responses, may yield different rankings of the states (to say nothing of other ways of measuring prejudice). We will present additional results at the Midwest Political Science Association conference in April.
Suffice it to say for now that the coverage formula seems defensible under the standard implicit in the Chief Justice’s questioning. Or, to borrow a metaphor from Judge Williams of the D.C. Circuit, Congress appears to have “hit the bull’s eye throwing a dart backwards over its shoulder.”
Elmendorf is Professor of Law at UC Davis. Spencer is a doctoral student in Jurisprudence and Social Policy at UC Berkeley. Elmendorf contributed to an amicus brief on behalf of the respondents in Shelby County v. Holder.
 Our overall measure of prejudice includes just those respondents who exceeded the national average by at least one standard deviation, or 14% of the sample.
Really? with Seth and Kevin. “The South is still the Michael Jordan of racism.” VRA is a backup defender.
“I don’t think you get to say what’s outdated when you’re a small council of old people in robes who can’t be fired.”
Hebert and Derfner follow up on a Shelby County question.
Press release: “The Brennan Center for Justice at NYU School of Law is pleased to welcome as a new Fellow Andrew Cohen, a Murrow Award-winning journalist and one of the nation’s leading legal analysts. Today, Cohen wrote a column for the Center’s website on this week’s Voting Rights Act case, Shelby County v. Holder, arguing Section 5 is still needed to combat racial discrimination in voting.”
On the Daily Show. Watch:
Amanda Becker has written this piece for Roll Call, which begins with comments made at yesterday’s Supreme Court oral argument in Shelby County about Congress.
The article discusses my soon to be published Southern California Law Review article, End of the Dialogue? Political Polarization, the Supreme Court and Congress.
We were both in the courtroom yesterday for the oral argument in the Shelby County, Alabama, voting rights case, and were particularly struck by one aspect of the arguments: the strange persistence of the myth that Section 2 of the Voting Rights Act is an adequate substitute for Section 5. The working theory seems to be that if Section 5 is declared unconstitutional or the coverage formula in Section 4 is struck down, there’s always Section 2 of the Act. We call that a theory because there is no basis in reality for believing it.
Solicitor General Don Verrilli told the Justices that Section 2 cases are not an adequate substitute for Section 5, emphasizing that the voter has to bear the burden of proof and other heavy burdens, including cost. Attorney Debo Adegbile followed that up with the point that Sections 2 and 5 work in tandem, with Section 5 often needed to insure that gains won in Section 2 cases are protected.
From our own perspective as two lawyers with more than a hundred Section 2 cases in our combined nearly 90 years of practice (forty years plus each), we have some points we think are important to consider as the Justices decide this case. We would also note the importance of Supreme Court cases like United States v. Raines.
One of the best reporters covering how Shelby County is playing in covered jurisdictions is Gannett’s Mary Orndorff Troyan. Gannett stories often don’t come up in my news searches for some reason, so here’s some catchup on three recent stories: