FSU Law of Democracy Symposium Now in Print

…ist Manifesto” for Election Day: How to Prevent Mistakes at the Polls, by Joshua A. Douglas The Coordination Fallacy, by Michael D. Gilbert & Brian Barnes Reining in the Purcell Principle, by Richard L. Hasen Race, Shelby County, and the Voter Information Verification Act in North Carolina, by Michael C. Herron & Daniel A. Smith The Nineteenth Amendment Enforcement Power (But First, Which One Is the Nineteenth Amendment, Again?),…

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“Voting Rights in the Age of Trump”

…e for attorney general, charged black civil rights activists in Alabama with voter fraud. (They were acquitted.) He has called the Voting Rights Act “a piece of intrusive legislation,” and supported the Supreme Court’s Shelby decision, saying “if you go to Alabama, Georgia, North Carolina, people aren’t being denied the vote because of the color of their skin.” Things are hardly better at the state level. After the 2016 election,…

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My One Personal Interaction with Sen. Sessions Does Not Give Me Confidence About Strong Voting Rights Enforcement with Him as AG

…e Court could well strike the law down as an unconstitutional exercise of congressional power. (We know how this story ends. Congress did not make the changes, and the Supreme Court indeed struck these provisions down in the Shelby County case.) The hearing was odd, a bunch of liberal law professors called to question the constitutionality of the Voting Rights Act. Sen. Arlen Specter headed the committee, but he was seen as too liberal, and to…

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Bert Rein, Lawyer for Shelby County, Says Maybe #SCOTUS Decision Good Because It Deterred “Some Illegals” from Voting

…the election is less important than whether it unnecessarily disenfranchised any number of voters, even if it was less than a substantial amount. We put the same question to Bert Rein, of Wiley Rein, who argued on behalf of Shelby County, Alabama that the Voting Rights Act was unconstitutional. “You know, I saw that in Rick Hasen’s blog,” he acknowledged. Rein laid out the issue as he sees it: “Were those changes sufficiently impactful to…

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Democrats Blame “Voter Suppression” for Clinton Loss at Their Peril

…ok, The Voting Wars, but it is one of the top topics on this blog.) Yes, the conservative Supreme Court made it easier for Republican legislatures to pass these laws by gutting a key part of the Voting Rights Act in the 2013 Shelby County v. Holder case and by giving the green light to restrictive voter id laws in the 2008 case, Crawford v. Marion County Elections Board. (And, thanks in part to the irresponsible decision of Justice Ginsburg not…

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Linda Greenhouse, Changing Tone, Urges CJ Roberts to Rise Above Politics in North Carolina Voting Case

…Roberts court is not a tool of partisan politics, that the Supreme Court has not turned irrevocably away from protecting civil rights, including the right to vote. Three years ago, he was the author of the 5-to-4 decision in Shelby County v. Holder, which gutted the Voting Rights Act of 1965 on the ground that “things have changed dramatically” and the protections of the law were no longer needed. That was a dubious sentiment in 2013. In 2016,…

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“The Supreme Court and Voter Suppression”

…en: I wonder what goes through the mind of U.S. Supreme Court Chief Justice John Roberts these frantic days as he reads one account after another of voter suppression in the 2016 election. Does he regret his decisive vote in Shelby County v. Holder, the 2013 decision that struck down the preclearance provision of the Voting Rights Act? Does he acknowledge, even to himself, that by stripping federal officials of much of their power to preclude…

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“Amicus: Intimidation Nation — Lawyers challenging punitive voting restrictions in Ohio are making an eleventh hour appeal to the Supreme Court.”

Dahlia Lithwick podcast: In the wake of the Supreme Court’s 2013 decision in Shelby County v. Holder, many states made changes to their voting laws that may disproportionately harm minorities. This week, lawyers in Ohio filed an emergency motion with the Supreme Court requesting a suspension of post-Shelby voting restrictions in their state. One of those lawyers, Subodh Chandra, joins us to explain why. We also speak with Wendy Weiser, director…

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“Why the Justice Dept. Will Have Far Fewer Watchdogs in Polling Places”

…me to a grinding halt,” she said, “and that’s a game changer this election cycle.” The Voting Rights Act was passed by Congress and signed into law by President Lyndon B. Johnson at the height of the civil rights era. In the Shelby County decision, Chief Justice John G. Roberts Jr. wrote that “our country has changed” since those days of rampant voter discrimination. The decision — which freed nine states, mostly in the South, to change their…

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Why Did Paul Clement Craft His NC Voting Brief as If Scalia Was Still Alive? A Theory

…Indeed, my UCI Law colleague Leah Litman playfully edited Clement’s brief to make the point that liberals on the Court would be delighted if the 4th Circuit found a way to undermine Crawford and reverse the effects of Shelby County. Surely Clement knows this, and a better pitch in the brief would have been to argue solely that 4th Circuit ruling came too close to the election, violating the Purcell principle. So what gives? Here’s…

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Guy Charles on the NC Voting Decision

…stay was very strong and obviously attractive to the conservative Justices, presumably the applicant’s primary target.  The application was addressed to the soft spot in the lower court opinion, including the Fourth Circuit’s understanding of intentional discrimination and the manner in which the Fourth Circuit’s analysis limited the Supreme Court’s decision in Shelby County. Query whether this is the right way to craft a…

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“Turnout, Tenuousness, and Getting Results in Section 2 Vote Denial Claims”

…t of a confluence of forces. The Voting Rights Act’s preclearance regime, which had significantly prevented new forms of vote denial in covered jurisdictions effectively disappeared after the Supreme Court’s 2013 decision in Shelby County v. Holder. And increased partisan polarization, combined with politicians’ views about the relationship between turnout and election results led Republican-dominated legislatures to impose new restrictions and…

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“On Voting, North Carolina Case Is Test for Justices”

Jost on Justice: For Roberts, the case tests his prevailing view in the decision in Shelby County v. Holder to eliminate the Voting Rights Act’s preclearance decision on the ground that things have changed in the South since the law was enacted in 1965. The recent spate of voter ID laws and other vote suppression laws provides an ironic confirmation of sorts: disenfranchising minority voters is now practiced not just in the South but in other…

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Trump Again Threatens Voter Intimidation Methods

…hat the Trump campaign does not organize any efforts at voter intimidation. And even if this is just puffing, there’s the real danger that Trump supporters go rogue. Election protection efforts will be more important than they have been in decades, especially with the loss of federal observers after the Supreme Court’s decision in Shelby County….

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“Opinion: Three ways Congress can muscle-up to your voting rights”

…igged districts, it is time to take action. Clinton supports such action. Not a word from her opponent. Second, BTP would restore essential provisions of the Voting Rights Act, which was eviscerated by the Supreme Court 2013 Shelby v. Holder ruling; promote automatic voter registration for all Americans when they turn 18; and expand early, in-person voting in every state. Clinton supports these actions. Not a word from her opponent. Third, and…

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“Voting Rights Success? Not So Fast”

…o look for ever new and creative ways to disenfranchise minorities. Voting rights groups will have to fight each change individually, without the benefits of a preclearance system that the Supreme Court wrongly eliminated in Shelby. This drive to limit the franchise and the findings of the Fourth Circuit in the North Carolina case show the fallacy of Chief Justice John G. Roberts Jr.’s contention in Shelby that intentional racial discrimination…

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“Is North Carolina Trying To Lose One Of The Biggest Voting Rights Cases In The Nation?”

…Ian Millhiser for Think Progress. Millhiser: “The whole brief is written to piss off liberals. Opening with Crawford & Shelby County? Why not Lochner & Korematsu!” Farias: This from North Carolina to # SCOTUS strikes me as rather … odd: Leah Litman: “Great news! I found RBG SGB EK & SS edits to NC’s request to stay CA4 voting rights ruling”…

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“In Several States, Trump’s Poll Monitors May Be ‘Second Amendment People’”

…rearms from polling places.” The effort failed, and the attorney general reiterated that polling places are not included in the list of banned firearm locations in Alabama. Several counties still insisted on a ban, including Shelby County, whose sheriff said that he would ban open-carry at polling places in his county unless he was otherwise directed. Fears may be compounded this year given Trump’s presence on the ballot. Throughout his…

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“Redistricting, Voter ID Laws, Early Voting, And The Post-Shelby World”

…w bookAmerica Votes (affiliate link), which Griffith also edited. In a wide-ranging discussion about voting rights restrictions, they share the less well-known backdoor to the Voting Rights Act that could alleviate the sting Shelby County laid on activists in the old pre-clearance jurisdictions. On the other side of the fence: Representative Paul Stam, Speaker Pro Tempore of the North Carolina House of Representatives, and a defender of the both…

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New Edition of The Law of Democracy Available

…approach; a new Chapter 6 now presents the constitutional vote dilution issues first in the race context and then in the partisan gerrymandering context. Chapter 7 is devoted exclusively to the Voting Rights Act. We have shortened the legislative history of Section 2, and tightened our coverage of Section 2 vote-dilution claims, while adding coverage of Section 2 vote-denial claims. In the wake of the Supreme Court’s decision in Shelby County v….

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“Turning the Tide on Voting Rights”

…ision to the full Fourth Circuit, the state probably would have won. But retirements and new judges have turned the Fourth Circuit into a much more liberal court. Second, Republican legislatures overplayed their hand. After the Supreme Court gave the green light in 2008 to Indiana’s strict voter identification law in Crawford v. Marion County Election Board and effectively gutted preclearance in Shelby County v. Holder in 2013, Republican…

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“Will the Court Revisit Shelby County?”

…th a history of racial discrimination in voting to get their election changes pre-approved by the federal government. With Section 5 no longer in effect, most experts think it would be difficult to fashion a case challenging Shelby, and that even if you could, restoring Section 5 by judicial fiat might be too aggressive for some of the court’s liberals. More likely, for now, is that the court takes a different approach. Since Shelby, another…

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“Lawyers’ Committee Expresses Disappointment with U.S. Department of Justice Decision to Terminate Critical Federal Observer Program”

…federal judges have found that it violates the Voting Rights Act – three of them before Shelby County and four of them after.  The case is currently before the full Fifth Circuit, with a decision due any day.  But because of Shelby County, Texas’s law remains in force while we wait for a final decision – and it is not the only one.  Because of Shelby County, other states have also enacted laws that restrict voting rights.  And these laws have…

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2016 Election Law Supplement Shipping Aug. 2; Instructors Can Get Electronic Copy Now

…d Materials is up to date through the end of the Supreme Court’s October 2015 term. It includes excerpts of the Supreme Court’s decisions in McCutcheon v. FEC and other post-Citizens United campaign finance cases, as well as Shelby County v. Holder, which struck down a key provision of the Voting Rights Act. This year’s supplement covers recent redistricting cases from Alabama, Arizona, Texas, and Virginia, including Evenwel v. Abbott, the…

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“Lawyers’ Committee Releases New Report Examining Voting Rights Restrictions Following 2013 Supreme Court Ruling”

…Release: Today, the Lawyers’ Committee for Civil Rights Under Law (Lawyers’ Committee) released a new report, “Voting Rights Communication Pipelines: Georgia After Shelby County v. Holder” – examining Georgia, one of fourteen states that was subject to protections provided by Section 5 of the Voting Rights Act, before the 2013 U.S. Supreme Court decision that gutted this key provision in Shelby County v. Holder….

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Verrilli’s Regret

…From must-read Adam Liptak exit interview with the outgoing SG: The loss he most regrets, Mr. Verrilli said, was in 2013, in Shelby County v. Holder, which effectively struck down the heart of the Voting Rights Act of 1965. “There are some powerful real-world consequences that followed very quickly from that decision,” he said. “It was an iconic statute and an important part of American history. That was a tough loss.”…

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“Democracy Diminished: LDF Releases Report on State and Local Threats to Voting Rights Three Years After Landmark Shelby County Decision”

…to Voting Post- Shelby County, Alabama v. Holder (Shelby County), a detailed collection of state, county, and local voting changes — proposed or implemented — during the past three years since the Supreme Court’s decision in Shelby County, Alabama v. Holder. The Court’s decision in Shelby County eliminated the provision of the Act that for fifty years required jurisdictions with a history of voting discrimination to submit proposed changes to a…

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“Voter Welfare: An Emerging Rule of Reason in Voting Rights Law”

…ry intent or statutory protections of minority voting opportunity. Although only some of these challenges arise in jurisdictions that were formerly covered by Section 5 of the Voting Rights Act, the Supreme Court’s ruling in Shelby County further compels a new legal approach to these cases. This article begins with the observation that, at least thus far, courts have been remarkably sympathetic to these new claims of voter exclusion, even…

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“Inventing Equal Sovereignty”

…013 decision in Shelby County v. Holder relied on the “fundamental principle” and “historic tradition” of equal sovereignty to hold one of the Voting Rights Act’s key provisions unconstitutional. Yet almost three years after Shelby County, and despite a recent wave of equal sovereignty challenges to major federal programs, the equal sovereignty principle remains largely unexamined. This Article seeks to provide some clarity—both to establish the…

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Major New Edition of “The Law of Democracy,” (Issacharoff, Karlan, Pildes, Persily) Available for Fall

…Act. We have shortened the legislative history of Section 2, and tightened our coverage of Section 2 vote-dilution claims, while adding coverage of Section 2 vote-denial claims. In the wake of the Supreme Court’s decision in Shelby County v. Holder, we have streamlined significantly our coverage of the preclearance regime of Section 5, while preserving the core issues that continue to have current implications. We’ve managed to revise the…

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2016 Supplement for Lowenstein, Hasen, and Tokaji Election Law Casebook Coming in time for Fall Classes

…d Materials is up to date through the end of the Supreme Court’s October 2015 term. It includes excerpts of the Supreme Court’s decisions in McCutcheon v. FEC and other post-Citizens United campaign finance cases, as well as Shelby County v. Holder, which struck down a key provision of the Voting Rights Act. This year’s supplement covers recent redistricting cases from Alabama, Arizona, Texas, and Virginia, including Evenwel v. Abbott, the…

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“U.S. judge upholds Virginia voter ID law”

…the Fifteenth Amendment, or the Twenty-Sixth Amendment,” U.S. District Judge Henry E. Hudson wrote Thursday. You can read the 62 page opinion here. Virginia’s law is not as strict as some other laws being challenged, and in all of these challenges, the standards for winning are quite difficult for plaintiffs. This is why the loss of Section 5 preclearance thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder…

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“Uncovering the Voting Rights Act: The Racial Progress Argument in Shelby County”

…d exceptional legislation back then is no longer prevalent or flagrant. This perspective can be summed up with the motif, “that was then, this is now.” In this Article I reconstruct the majority’s racial progress argument in Shelby County, and raise some concerns about ways of answering it that merely replace a conservative narrative about racial progress with a liberal one. Although I am partial to the latter narrative, and believe that the…

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4th Circuit Panel Which Partially Reversed NC Voting Decision in 2014 Likely to Get Case Back on Appeal

…rship likely knew it could not have gotten past federal preclearance in the pre–Shelby County era. McCrory, 997 F. Supp. 2d at 336. Thus, to whatever extent the Supreme Court could rightly celebrate voting rights progress in Shelby County, the post-Shelby County facts on the ground in North Carolina should have cautioned the district court against doing so here. 5. Looking at local factors and history, and and undisputed evidence that the…

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Breaking: #SCOTUS Unanimously Rejects AZ Redistricting Challenge: Analysis

…ourt directly holds that in this case, as it is not necessary to the decision.) And it held that Arizona could have deviated from perfect equality to comply with Section 5 of the Act, which the Court later gutted in the 2013 Shelby County case. It rejected the idea that because of the later Shelby case, reliance on Section 5 becomes suspect. Finally, the Court rejected the idea that this was a partisan gerrymander, obliquely recognizing the race…

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“Texas photo ID law stands despite challenges since Supreme Court ruling weakened Voting Rights Act”

…he LAT: Seemingly untouched by numerous legal defeats, the voter ID law serves as an example of how difficult it can be to halt potentially discriminatory voting rules in the aftermath of the Supreme Court’s 2013 decision in Shelby County vs. Holder. “This is a perfect illustration of what we lost,” said Jon Greenbaum, chief counsel for the Lawyers Committee for Civil Rights Under Law. “We have seven judges who looked at this and all found a…

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“Voting Rights Institute Asks Department of Justice to Investigate Daphne, Ala. for Possible Voting Rights Violations”

…ng locations for most of the city’s heavily white districts. “This is exactly the type of voting change that would have had to have been precleared by the Department of Justice before the Supreme Court’s disastrous ruling in Shelby County v. Holder,” said Harry Baumgarten, Legal Fellow with the Voting Rights Institute . “In gutting a key provision of the Voting Rights Act, the Supreme Court has opened the door for these potentially…

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“What if the Supreme Court Were Liberal?”

…would likely overrule Citizens United and say that it is returning to its earlier approach. Congressional power. Conservatives on the Court long have wanted to limit the scope of congressional power. For example, in 2013, in Shelby County, Alabama v. Holder, the Court struck down key provisions of the Voting Rights Act of 1965. This was the first time since the 19th century that the Court invalidated a federal civil-rights law dealing with race….

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“Douglas and Mazo’s Election Law Stories”

…ories book. This title offers a rich and detailed account of the most significant cases in election law, including the landmark decisions of Reynolds v. Sims, Bush v. Gore, Citizens United v. Federal Election Commission, and Shelby County v. Holder. The book relies on a unique encapsulated approach to storytelling, as each of its authors surveys an important doctrinal area in the field through the telling of his or her story. The volume’s…

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My Thoughts on AZ Long Lines: Incompetence, Not Vote Suppression, and Blame #SCOTUS First

…ened if #SCOTUS Hadn’t Killed Voting Rights Act Provision?  My point was that Maricopa County’s decision to cut the number of polling places by 2/3 would not have been possible before the Supreme Court decided the 2013 Shelby County v. Holder case because to do so Arizona, which had been covered by Section 5 of the Voting Rights Act, would have had to demonstrate (and likely would not have been able to demonstrate) that doing so would not…

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“The Right to ‘Mobocracy’”

…cial ire for the Supreme Court, which in recent years has opposed his views in cases like Citizens United, which ruled that a 1907 congressional ban on corporate contributions to political campaigns was unconstitutional, and Shelby County v. Holder, which overturned Section 4 of the Voting Rights Act of 1965—Mr. Waldman uses the word “eviscerated.” Yet Mr. Waldman’s proposed reforms deserve serious consideration. Reforming felon…

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