“Arguments Over North Carolina Voter ID Law Begin in Federal Court”

…s in the wake of the United States Supreme Court decision that, in 2013, upended a significant component of the Voting Rights Act. “The North Carolina litigation is the leading litigation in the post-Shelby world,” said Edward B. Foley, an elections law expert at Ohio State University, referring to the Supreme Court’s decision in Shelby County, Alabama, v. Holder. “It’s the test case, the battleground case more than any other.”…

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Shelby County, Texas Lose Voting Fee Cases Before the Supreme Court

Today’s Supreme Court order list includes news that Shelby County, Alabama was denied fees in its voting case which got a key part of the Voting Rights Act struck down as unconstitutional. On this case, see my earlier post, Chutzpah Dep’t: Court Rejects Shelby County Plaintiffs’ Request for $2 Million in Attorney’s Fees. Texas also will have to pay lots of plaintiffs’ attorneys fees in a preclearance redistricting case….

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Ed Blum Statement to ELB on Guardian Article: No Regrets about Shelby County

…xpress some second thoughts about how things have worked out since the Surpeme Court decimated Section 5 in the Shelby County case. In response, Ed sends along the following statement: Just because I have concerns about some jurisdictions imposing voting requirements that discourage participation, it does not follow that I have regrets about any of the past or current cases I have helped file. I have no regrets. One of the problems giving intervi…

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Ed Blum’s Regret

…Some of Blum’s cases have had such an impact that even he has been taken aback. Nowhere is that truer than with Shelby County v Holder, a case he sponsored that in 2013 led the supreme court to overturn a key provision of the 1965 Voting Rights Act. Blum told the Guardian he has worried over the fallout from that ruling, which spurred conservative legislators in Texas, North Carolina and elsewhere to revive laws that the Justice Department had pr…

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My Academic Articles 2013-2014

…lican Efforts to Make it Harder to Vote in North Carolina and Elsewhere, 127 Harvard Law Review Forum 58 (2014) Shelby County and the Illusion of Minimalism, 22 William and Mary Bill of Rights J. 713 (2014) Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform, 8 Harvard Law & Policy Review 21 (2014) Keynote Address of Prof. Richard L. Hasen Given to the Voting Wars Symposium, March 23, 2013, 28 Journal of Law and…

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“Return of the States”

Ruth Greenwood with a Star Wars-themed election law piece: In the wake of Shelby County v Holder [1] and the hundreds of restrictions on voting rights passed by state legislatures in the last five years,[2] Ben Cady and Tom Glazer’s article, Voters Strike Back,[3] provides a timely and comprehensive review of the causes of action available for voter intimidation. It provides guidance to litigators on how to use these currently underutilized prov…

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ELB Podcast Episode 8. Pam Karlan: Voting Rights In America, 2016

…approach the 2016 elections? Has the loss of a key portion of the Voting Rights Act thanks to the Supreme Court’s Shelby County decision made it harder to register and vote? What tools do voting rights advocates have to fight the latest efforts to restrict access to the ballot? On Episode 8 of the ELB Podcast, we talk to Stanford Law Professor Pam Karlan. You can listen to the ELB Podcast Episode 8 on Soundcloud or subscribe at iTunes….

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“Evenwel v. Abbott: Who Will Count in Our Democracy?”

…. Evenwel is the most recent broad attack on well-settled democratic principles before the Court. Following the Shelby County v. Holder decision, which disabled a key prophylactic provision of the Voting Rights Act of 1965 that warded off racial discrimination in voting,Evenwel seeks to add more tumult to the inherently fraught process of redistricting and depart from longstanding precedent and practice. As an ancillary matter, Evenwel also seeks…

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“Balance Sheet Voting Rights Act 50 years”

…ormation of the Voting Rights Act, 1965-2015 [Full Text] Richard L. Engstrom The Elephant in the Room: NAMUDNO, Shelby County, a nd Racially Polarized votin g [Full Text] Morgan Kousser Do The Facts of Voting Rights Support Chief Justice Roberts’s Opinion in Shelby County? [Full text] Thomas L. Brunell and Whitney Ross Manzo The Voting Rights Act After Shelby County v. Holder: A Potential Fix to Revive Section 5 [Full Text] Laughlin McDonal…

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“Eric Holder on Voting Rights, Black Lives Matter, Karl Rove, and Tupac”

Conversation with Ari Berman. The case that struck down a key part of the Voting Rights Act was called Shelby County v. Holder. You are Holder. Do you think the Administration in retrospect could have done anything differently in arguing that case? No, I don’t think so. I was one of the few people in the department that thought there was no way the Supreme Court was going to go against the record Congress had established. Folks in the Solicitor…

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University of Chicago Legal Forum 2015: Does Election Law Serve the Electorate

…Call for Prophylactic Measures to save Souls to the Polls: Importing a Retrogression Analysis in Sec. 2 of the Voting Rights Act, A Comments Garrett, Ruby J. Page 633 Restricted Subject Matters: Misconceptions of Speech and Ballot Initiatives Does Election Law Serve the Electorate Sandoval, Robert S. Page 669 Treading Carefully after Shelby County: Minority Coalitions under Section 2 of the Voting Rights Act Comments Yang, Audrey Page 701…

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Why I’m Optimistic About Evenwel, #SCOTUS One Person, One Vote Case

…view symposium in February, I ask the question why the Roberts Court, despite cases such as Citizens United and Shelby County, has not moved even further to the right as I had predicted when the Roberts Court began in 2006. So I’m somewhat surprised myself that I am not all that worried about what the Court is going to do in the Evenwel v. Abbott one person, one vote case, being heard next week at the Supreme Court. In Evenwel, plaintiffs a…

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“Shelby challenger John Martin accuses fellow rival Jonathan McConnell of urging him to drop out, reimbursing him if he did”

Al.com: One of the candidates looking to unseat U.S. Sen. Richard Shelby, R-Ala., in the Republican primary is claiming fellow GOP challenger Jonathan McConnell urged him to drop out of the race and promise to reimburse his expenses if he did so. John Martin, a Dothan former Army Ranger who filed to run in the March 1 primary, posted the allegations earlier this month to Facebook, describing the offer as “illegal.” Alabama Political…

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Floyd Abrams on Campaign Finance, Inequality, Shelby County, and More

Tonight Floyd Abrams gave the Raymond Pryke First Amendment Lecture at UCI Law, and you can watch a video of it here: Most of the lecture consisted of Floyd defending the Supreme Court’s approach to campaign finance cases particularly in Buckley v. Valeo and Citizens United v. FEC. Having just written a book which examines some of Floyd’s arguments in detail, I found many of Floyd’s arguments familiar (well said, and interestin…

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“Attorney General Paxton Asks SCOTUS to Declare Redistricting Attorneys’ Fees Award Unconstitutional Under Shelby County v. Holder”

…n the Voting Rights Act’s unconstitutional preclearance framework, which the Supreme Court nullified in 2013 in Shelby County v. Holder.   “Supreme Court opinions have the binding effect of law the day they are issued,” Texas Attorney General Ken Paxton said. “The lower courts were unjustified in compelling Texas to pay attorneys’ fees under a law that was invalidated as unconstitutional a full year earlier. We are asking the Court to step i…

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“Civil Rights Legal Group Picks New President”

…in criminal justice, voting rights, housing and employment. Clarke, 40, heads the New York AG’s Civil Rights Bureau and previously worked at the NAACP Legal Defense and Educational Fund and the U.S. Department of Justice Civil Rights Division. At the legal defense fund in 2011, she argued in Washington federal district court in the Shelby County, Alabama, voting rights case that eventually went to the U.S. Supreme Court. Congratulations!…

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“Jeb Bush and Ben Carson Split on Voting Rights Act”

…5 years. In fact, the only parts reauthorized for 25 years are Section 5 (which has been rendered inoperative by the Shelby County decision) and Section 203, language assistance provisions. The key Section 2 is permanent and does not come up for reauthorization.  (See my earlier post on some ambiguities in what Jeb Bush said today about this point.) The problem all stems from how the question to Jeb Bush today was phrased.  …

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What Did Jeb Bush Mean in His Comments About Not “Reauthorizing” the Voting Rights Act?

…which would restore Section 5 Voting Rights Act preclearance in some form which the Supreme Court gutted in the Shelby County v. Holder case. That’s not precisely “reauthorization”–the act was reauthorized in 2006, but then struck down in part in Shelby County. But this is how I think Bush took the question. It is possible to read the comment more broadly to reject other provisions of the VRA as well, including Section 2,…

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“Top Recent Downloads in Election Law on SSRN”

…211; Davis Law School Date posted to database: 7 Aug 2015 Last Revised: 18 Aug 2015 8 31 A Localist Critique of Shelby County v. Holder Justin Weinstein-Tull Stanford Law School Date posted to database: 11 Aug 2015 Last Revised: 21 Aug 2015 9 29 That We Are Underlings: The Real Problems in Disciplining Political Spending and the First Amendment Jedediah S. Purdy Duke University School of Law Date posted to database: 7 Aug 2015 Last Revised: 25 Au…

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The Roberts Court at 10: Election Law

…didate elections and opened up a deregulatory era increasingly dominated by nominally independent “Super PACs.” Shelby County v. Holder eviscerated the congressional regime codified in Section 5 of the Voting Rights Act under which Congress required states and localities with a history of racial discrimination in voting to obtain federal permission before making a change in voting rules by proving that the change would not make minority voters wo…

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ELB Podcast, Episode 5. Nina Perales: Latino Voting Rights Struggles in Texas and Beyond

…hers? Has the demise of Section 5 of the Voting Rights Act thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder hurt minority voters? On Episode 5 of the ELB Podcast, we talk to Nina Perales, vice president of litigation for the Mexican American Legal Defense and Education Fund, and one of the country’s leading voting rights lawyers. You can listen to the ELB Podcast Episode 5 on Soundcloud or subscribe at iTunes….

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Sen. Murkowski Co-Sponsors Dem Bill to Fix Voting Rights Act

…down measure to restore a preclearance regime for voting changes which were lost when the Supreme Court decided Shelby County v. Holder. The measure has gone nowhere, in part because it was thought that Rep. Eric Cantor would have pushed it (but he lost in the 2014 Republican primary). In response to lack of movement on this legislation, Democrats pushed the Voting Rights Advancement Act, which is stronger in terms of which states get covered and…

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“How Jimmy Carter championed civil rights — and Ronald Reagan didn’t”

…ated. The five conservative justices on the Supreme Court who gutted the Voting Rights Act in the 2013 decision Shelby County vs. Holder were all appointed by Reagan or served in his administration. Reagan’s ideological descendants, post-Shelby, have imposed strict voter-ID laws, cut early voting and eliminated same-day voter registration. I was surprised this piece did not mention the Carter-Baker commission’s support for voter id la…

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“Texas Two-Steps All Over Voting Rights; It says it can make voting as difficult as it wants to, and any law that says otherwise is unconstitutional.”

…ir preferred candidates. Don’t worry, Chief Justice John Roberts assured the American public in that 2013 case, Shelby County v. Holder. Although states with a history of racial discrimination would no longer be subject to federal “preclearance” of voting changes because preclearance offends the “equal sovereignty” of states such as Texas, there’s always Section 2 of the Voting Rights Act. That provision, Roberts explained, is available “in appro…

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Chutzpah Dep’t: Court Rejects Shelby County Plaintiffs’ Request for $2 Million in Attorney’s Fees

…federal statute, including when a plaintiff seeks to enforce the Voting Rights Act against a government entity. Shelby County, which got the Supreme Court to strike down a key provision of the Voting Rights Act, unbelievably sought over $2 million in attorney’s fees. You can read the three opinions of the three judges on the Court here, but the result can be explained in one sentence from the majority opinion by Judge Griffith: “We fi…

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Two Law and Political Process Study Group Panels at APSA

…Act’s future. Among the questions to be considered: What has been the effect of the Supreme Court’s decision in Shelby County to render the preclearance provisions of the Act ineffective? What is the likelihood of congressional reinstitution of the preclearance provision? Does Section 2 of the Act continue to function as intended? What is the future for Section 2 and Section 203 language claims in the courts? Sub Unit Related Groups / Law and Pol…

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“Texas Ordered to Pay $1M in Legal Fees in Voting Rights Case”

…that Texas became the winner in the redistricting case after the U.S. Supreme Court struck down a provision of the Voting Rights Act in Shelby County v. Holder—didn’t cut it, Judge Patricia Millett wrote. “Texas gets no second bite at the apple now,” Millett wrote. “What little argument Texas did advance in its ‘Advisory’ provides an insufficient basis for overturning the district court’s award of attorneys’ fees.”  …

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“Election Law Federalism”

…ghts Act — long the most effective voting rights law in American history — was disabled by the Supreme Court in Shelby County v. Holder. Section 2 of the Voting Rights Act is in the crosshairs. As the Supreme Court becomes more hostile to race-based anti-discrimination laws like the Voting Rights Act, Congress will turn to race-neutral, election administration-based reforms to strengthen the right to vote. Indeed, many proposals for reform post-S…

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“Federal judge in New Hampshire: Ballot ‘selfies’ are free speech, don’t encourage voter fraud”

…ck of evidence of a current problem with vote buying. I think both of these arguments are off the mark. As with Shelby County and voting rights, the very fact that a law is effective makes it very hard to prove a negative. And because vote buying is hard to detect, this law is narrowly tailored to preventing it. Nothing stops a person from being able to tell everyone how he or she voted, on Facebook or otherwise. But the picture of the ballot whi…

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2015 Supplement to The Law of Democracy

…dary Between Crime, Campaign Contributions, and Lobbying 73 Note: The New “Political Realism” 86 Chapter Six 90 Shelby County v. Holder 90 Chapter Seven 114 There is no new material for this Chapter. 114 Chapter Eight 115 There is no new material for this Chapter. 115 Chapter Nine 116 There is no new material for this Chapter. 116 Chapter Eleven 121 Schuette v. Coalition to Defend Affirmative Action. Integration and Immigrant Rights and Fight for…

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GOP Statement on Voting Rights Act Celebrates Early Voting, While GOP Legislators Cut It Back

…made it possible.” Yet in North Carolina, Ohio, Wisconsin (where Priebus is from) and elsewhere, Republican legislators have voted to cut back early voting, and to impose additional voting restrictions, such as more onerous voter identification laws. Nor is the GOP supporting efforts to amend the Voting Rights Act after the Supreme Court’s 2013 opinion in Shelby County v. Holder gutting a key part of it. Here is the full statement:…

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“How to Save the Voting Rights Act”

…” that accelerated when Roberts led the court’s conservatives in striking down the 2006 preclearance renewal in Shelby County v. Holder. Berman’s book, like Jim Rutenberg’s excellent cover story for the New York Times Magazine on the 50th anniversary of the Voting Rights Act, views the struggles over voting rules primarily through the lens of race. And although that is an essential lens to apply, it downplays the growing role of partisan politics…

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“Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists”

…didate elections and opened up a deregulatory era increasingly dominated by nominally independent “Super PACs.” Shelby County v. Holder eviscerated the congressional regime codified in Section 5 of the Voting Rights Act under which Congress required states and localities with a history of racial discrimination in voting to obtain federal permission before making a change in voting rules by proving that the change would not make minority voters wo…

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“Voting Rights at 50”

…he fiftieth anniversary of the Voting Rights Act comes at a difficult juncture. The Supreme Court’s decision in Shelby County dismantled the core preclearance provisions of what had been the most successful civil rights law in American history. At the same time, the right to cast a ballot free of unnecessary legal encumbrances is more contested than it has been in generations. Yet, the story is more complex. The landscape of voter discrimination…

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“The Voting Rights Act at 50 and the Section on Election Law at Birth: A Perspective”

…ct of 1965, the scholarly community has been fretting over the statute’s possible demise. Two years after Shelby County v. Holder, many voting rights scholars are still up in arms about the Supreme Court’s 2013 decision that rendered Section 5 of the VRA a dead letter. Section 5 had previously required covered jurisdictions to obtain federal preclearance before implementing any changes to their voting practices or procedures. But in Shelby

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“Symposium: Ideology, partisanship, and the new ‘one person, one vote’ case”

…n Fair Representation, brought us the demise of a key provision of the Voting Rights Act in the Supreme Court’s Shelby County v. Holder case and continued attacks on affirmative action in the second coming of theFisher case. But the theory the Evenwel plaintiffs pursue is anything but conservative: it is about taking power away from the states and having the Supreme Court overturn precedent by imposing through judicial fiat a one-size-fits-all ve…

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Revealing @SeanTrende-@Dale_E_Ho Exchange in NC Voting Rights Trial

…rpt it in this post at The Monkey Cage: North Carolina passed its 2013 restrictive voting law just a month afterShelby. So is the change connected to is history of race discrimination? Real Clear Politics’ Sean Trende, testifying as an expert political analyst for North Carolina, noted that seven other states besides North Carolina had no same-day registration, no out-of-precinct voting, less than 17 days of early voting, no preregistration, and…

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An Academic Elegy

…to start mourning the Voting Rights Act because it’s never coming back. For me, the mourning process began when Shelby County v. Holder came down. But until I’d read “The Voting Rights Act in Winter: The Death of a Superstatute,” I’d been a naïve cynic (or a cynical naïf). I’d hoped that I wasn’t being hopeful enough. But when the always-wise and ever-optimistic Guy Charles—the academic who insisted in 2006 that the civil-rights commu…

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“Podcast: Voting rights on trial in North Carolina”

…d the right to vote on account of race or color. In 2013, the Supreme Court struck down Section 4 of the Act in Shelby County v. Holder. That part of the law established a formula to determine which jurisdictions would be required to obtain federal approval for changes in their election laws. The Court ruled that the formula was unconstitutional in light of improved conditions in those previously covered areas. In this post-Shelby County world, l…

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“In Defense of the Equal Sovereignty Principle”

…thcoming Duke LJ).  Here is the abstract: The Supreme Court of the United States based its landmark decision in Shelby County v. Holder on the proposition that the Constitution contains “a fundamental principle of equal sovereignty among the States.” For the central holding of a blockbuster constitutional case, that assertion was surprisingly unsupported. The Court simply declared it to be true, and made little effort to substantiate it. Naked as…

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“Accusations fly as NC House changes course on Greensboro redistricting”

…ublicans. That bill passed quickly along party lines, but the Greensboro council redistricting prompted a bitter split among GOP legislators. And it drew comments from legislators who represent other areas, including criticism that the change will diminish the impact of black Greensboro residents. Before Shelby County, this plan would have required federal approval, and proof that the plan would not make protected minority voters worse off….

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2015 Supplement to Election Law Casebook

…Shapiro v. Mack Harris v. AZ Redistricting Commission Arizona Legislature v. Arizona Redistricting Commission * Shelby County v. Holder* Alabama Democratic Conference v. Alabama* Williams-Yulee v. Florida State Bar* 281 Care Committee* American Tradition Partnership v. Bullock* McCutcheon v. FEC* Kobach v. EAC Earlier description: The 2015 supplement is shipping in time for fall classes, and will now include edited versions of the Evenwel one per…

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Don’t Be Surprised #SCOTUS May Kill Public Sector Unions. Justice Alito Asked for These Cases

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

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What the Heck is Going On in Arizona Redistricting?

…t.  An additional question for SCOTUS is whether underpopulation is permissible for this purpose.  (And because Shelby County left section 5 no longer applicable, there’s still another question: even if it was once permissible, is it still?) The case is superficially related to Evenwel, one of the other big districting cases at SCOTUS next Term. But really, the cases are quite different: Evenwel is about who counts in determining district size; H…

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Breaking: #SCOTUS to Hear ANOTHER AZ Redistricting Case

…olved by the Supreme Court’s summary affirmance in Larios v. Cox, and the second question seems mooted by Shelby County‘s killing of preclearance. I am not sure why the Court took this case rather than a simple summary affirmance, but we will find out soon enough. Perhaps the Court thought it should take the case while the larger Evenwel one person, one vote case was pending. The full questions presented are:   Via Justin Levitt,…

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Is Chief Justice Roberts Really Consistent? Think Citizens United and Shelby County

…had been passed almost unanimously by Congress and signed into law by President George W. Bush.   In that case, Shelby County v. Holder, it was not even possible to tell what constitutional provision the majority thought was violated by the Voting Rights Act.  None of the four dissenters were the least bit concerned with deferring to the political process when they declared unconstitutional key provisions of the Bipartisan Campaign Finance Reform…

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