No, Shelby County Did Not “Abrogate” South Carolina v. Katzenbach

Joel Heller has a very nice piece in the California Law Review Circuit, Subsequent History Omitted, on Westlaw’s aberrant coding of the Shelby County voting rights case as having abrogated the original case upholding voting rights preclearance, South Carolina v. Katzenbach.  From the piece’s conclusion: In labeling Katzenbach “abrogated by Shelby County,” Westlaw not only made an unwarranted value judgment, but also potentially swaye…

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“Devising a Standard for Section 3: Post-Shelby County Voting Rights Litigation”

Roseann Romano, adding to a growing list of important student notes on bail-in, for the Iowa Law Review: In response to the Supreme Court’s decision in Shelby County v. Holder, which dismantled the modern voting rights enforcement regime by declaring section 4(b) of the Voting Rights Act (“VRA”) unconstitutional, plaintiffs in voting rights lawsuits have sought protection from a little-used provision of the VRA: section 3(c). Section 3(c) allows…

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

Paul Wiley has written this very (and timely, given Texas) important student note for the Washington and Lee Law Review. From the Introduction: One of those portions of the Voting Rights Act that remained untouched by Shelby County is § 3(c)15—the “bail-in” or “pocket trigger” provision.16 Section 3(c) authorizes a court presiding over a successful voting rights suit to impose a preclearance regime on the defendant jurisdiction, thus requiring t…

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The Biggest Aspect of the Texas Case: Texas To Be Covered Again by Section 5 (If Case Stands)

Justin noted a key aspect of the Texas id decision which I want to highlight: “Also extremely important: the court expressly finds intentional discrimination relevant to bail-in under the Voting Rights Act, and says it will consider a bail-in order in the days to come.  If the court indeed follows up with a bail-in order, Texas could become the first state brought back under a preclearance regime since Shelby County.” Getting Texas a…

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BREAKING: Federal Court Strikes TX ID Law

Texas-sized news out of the Lone Star State.  A federal court has struck down Texas’s voter ID law.  It violates the Voting Rights Act, it violates the constitutional prohibition on poll taxes, it violates the constitutional prohibition of unjustified burdens, it violates the constitutional prohibition on intentional racial discrimination: indeed, in 147 pages of opinion, there’s little that the ID law doesn’t violate. Also ext…

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The Virginia redistricting decision

Rick mentioned the Virginia congressional redistricting decision earlier today. I’ve already seen some confusion about this: the decision doesn’t depend on Shelby County.  Indeed, as I read it, the decision would have been exactly the the same if Shelby County came out differently — or hadn’t been decided at all. Instead, what the court found is that Virginia’s deployment of race in the redistricting process was ham…

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Breaking: Supreme Court to Hear Arizona Redistricting Case and Florida Case on Judicial Campaign Speech: Analysis

The number of election laws the Supreme Court has heard with a full argument has dropped off in recent years, I believe in part because voting rights advocates have tried to stay out of the Supreme Court. (See my ELJ analysis: The Supreme Court’s Shrinking Election Law Docket, 2001-2010: A Legacy of Bush v. Gore or Fear of the Roberts Court?.)  If you think of the major election cases the Supreme Court has heard in recent years, they have been c…

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Breaking: 4th Circuit, on 2-1 Vote, Partially Blocks NC Voting Changes: Analysis

The 4th Circuit on a 2-1 vote (on a panel made up of all Democratic appointees) has issued an opinion requiring North Carolina to restore same day voter registration and the counting of out of precinct ballots in the upcoming election. The majority offers a generous but reasonable reading of the scope of section 2 of the Voting Rights Act. The main difference with the dissent is over the question whether making these changes now is going to cau…

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“The Voting Wars Heat Up: Will the Supreme Court allow states to restrict voting for partisan advantage?”

I have written this new piece for Slate.  It begins: The fights in our states over how hard or easy it is to vote have been filling the courts and are headed toward the Supreme Court. The cases range from voter ID laws to early voting rules and beyond. Already there is a case from Ohio, with ones from Wisconsin, North Carolina , and Texas potentially on the way in a matter of days or weeks. The stakes are high, not only for the lazy 2014 midter…

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Justice Ginsburg Reflects on Bush v. Gore, Citizens United and Shelby County

TNR interview of the Justice by Jeff Rosen: JR: And you’ve discouraged separate concurrences. RBG: Yes. JR: Why is that? RBG: The experience I don’t want to see repeated occurred in Bush v. Gore. The Court divided five to four. There were four separate dissents, and that confused the press. In fact, some of the reporters announced that the decision was seven-two. There was no time to get together. That case was accepted by the Court on Saturday,…

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“Rethinking District of Columbia Venue in Voting Rights Preclearance Actions”

Michael Solimine has written this Essay for the Georgetown Law Journal.  Here is the beginning: In Shelby County v. Holder the Supreme Court held that the preclearance provision of the 1965 Voting Rights Act (VRA) was unconstitutional as presently constituted.  Section 5 of the VRA requires certain states, mainly in the Deep South, to preclear certain changes to their election laws before they can go into effect. These states must either seek ap…

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“Remarks by Attorney General Eric Holder at the Congressional Black Caucus Panel Discussion on Voting Rights”

A snippet: As you’re discussing, through the unrelenting efforts of the Justice Department’s Civil Rights Division – under the leadership of Acting Assistant Attorney General Molly Moran, from whom you’ll be hearing this afternoon – my colleagues and I are acting aggressively to ensure that every American can exercise his or her right to participate in the democratic process, unencumbered by unnecessary restrictions that discourage, discriminate…

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Message from AALS Election Law Section

Josh Douglas asked me to post the following: Dear Election Law Professors, The Executive Committee of the AALS Section on Election Law has selected its winner of the Call for Papers for January’s meeting:  David Garter (ASU), Universal Participation. We are now looking for one more person to join the panel, which includes Pam Karlan, Chris Elmendorf, Kareem Crayton, and now David Gartner.  Those interested must be law professors at an AA…

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AALS Election Law Section Call for Papers

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

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UN Committee on Racial Discrimination in US Issues Recommendations on Voting Rights

Here: Right to vote 11. The Committee is concerned at the obstacles faced by individuals belonging to racial and ethnic minorities and indigenous peoples to effectively exercise their right to vote, due inter alia to restrictive voter identification laws, district gerrymandering, and state-level felon disenfranchisement laws. It is also concerned at the Supreme Court decision in Shelby County v. Holder, which struck down Section 4(b) of the Voti…

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“Navigating Election and Political Law: Leading Lawyers on Understanding Campaign Finance, Speech, Voting Rights, and the Laws that Govern (Inside the Minds)”

Looks like an interesting new book for election law practitioners with some top notch contributors: Navigating Election and Political Law provides an authoritative, insider’s perspective on the dynamics of the federal and state laws governing political contributions and spending, and how these laws are impacting practitioners and their clients. Written by partners from some of the nation’s leading law firms, this book guides the read…

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More on Texas’s Argument DOJ Too Partisan to Enforce Voting Rights Act

…th Amendment―concerns that are particularly relevant to a section 3(c) analysis in the wake of Shelby County, where the Supreme Court placed the entire preclearance regime on tenuous constitutional grounds. See Shelby County, 133 S. Ct. at 2620 (holding that the very existence of a  “preclearance” requirement raises grave constitutional questions”). Defendants’ allegations and defenses are not offered for nothing; each one of them bears directly…

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“Vulnerability in Numbers: Racial Composition of the Electorate, Voter Suppression, and the Voting Rights Act”

…eith Bentele have posted this draft on SSRN (forthcoming Harvard Latino Law Review).  Here is the abstract: In Shelby County v. Holder, the Supreme Court rendered one of the most potent antidiscrimination provisions of American law a dead letter: the preclearance regime of the Voting Rights Act of 1965 (VRA). Shelby County held that the formula determining which jurisdictions are required to obtain federal approval for voting law changes was outd…

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“Shelby County v. Holder and the gutting of federal preclearance of election law changes”

Dick Engstrom has written this article in Politics, Groups, and Identities.  Here is the abstract: The preclearance provision of Section 5 of the Voting Rights Act was rendered ineffective by the United States Supreme Court in 2013 in Shelby County, AL v. Holder. This provision required federal review of changes in the election policies and practices of state and local governments with particularly bad histories of racial discrimination in thei…

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Breaking: Federal Court Denies Preliminary Injunction in North Carolina Voting Case – Analysis

You can read the 125-page ruling here. I have now had a chance to quickly read the district court’s 125-page ruling in this case.  Here are my initial thoughts. 1. This is a careful, well-written and well-reasoned decision rejecting the U.S. and private plaintiffs’ Voting Rights Act and constitutional claims against some key provisions of strict North Carolina’s voting law passed last year. The opinion was only on a preliminary…

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“New Report Shows Continued Pattern of Voting Rights Discrimination—African American, Latino, Asian American and Native American Voters More Vulnerable Than Ever”

Major new report issued by the National Commission on Voting Rights: On the anniversary of the signing of the Voting Rights Act and a year after the Supreme Court’s Shelby County v Holder decision gutted a vital protection of the Voting Rights Act (VRA), the National Commission on the Voting Rights has released a new national report showing where and how that minority voters continue to be hurt by discrimination in the U.S. The report, Protectin…

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Top Recent Downloads in Election Law on SSRN

(my bimonthly listing) Here: RECENT TOP PAPERS for all papers first announced in the last 60 days 6 Jun 2014 through 5 Aug 2014 Rank Downloads Paper Title 1 54 Voter Privacy in the Age of Big Data Ira Rubinstein New York University (NYU) – Information Law Institut Date posted to database: 11 Jun 2014 Last Revised: 25 Jul 2014 2 33 ‘You’ve Got Your Crook, I’ve Got Mine': Why the Disqualificati…

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

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

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

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

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An Anticipatory Overruling of #Abood in #Harris Case?

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

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About that #SCOTUS Unanimity…A Skeptical Note

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

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

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

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One Year After Shelby County

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

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VRAA DOA?

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

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How is the SCOTUS Opinion in Bond Like NAMUDNO?

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

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Top Recent Downloads in Election Law on SSRN

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

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

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

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

…s-Civil Liberties Law Review). Here is the abstract: On June 25, 2013, the Supreme Court issued its decision in Shelby County v. Holder, ruling that the coverage formula in Section 4(b) of the Voting Rights Act is unconstitutional and “can no longer be used as a basis for subjecting jurisdictions to preclearance” under Section 5. In the four months after Shelby County was decided, sixteen states enacted restrictions on voting that Republicans be…

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

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

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“The Play in the Joints of the Election Clauses”

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

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

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

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SCOTUS’s Recycled Outtakes?

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

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

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

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New Ed Blum Voting Rights Lawsuit in Texas

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

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

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

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