“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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“Short Film About Victim of Texas Voter ID Law Shows Why We Need to Pass The Voting Rights Advancement Act Being Introduced Today”

…p. John Lewis (D-GA) introduce the Voting Rights Advancement Act (VRAA) on the eve of the second anniversary of Shelby County v. Holder, the Campaign Legal Center is releasing a short film focusing on a lifelong voter disenfranchised by Texas’ voter photo ID law (SB 14).  The most restrictive and burdensome voter ID law in the nation, the Texas law was rejected by the Department of Justice prior to the Shelby County ruling and is a perfect exampl…

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Democrats Have Stronger Proposal to Amend Voting Rights Act, But Huge Obstacles to Enacting It

…any see are problems with the Supreme Court’s gutting of the precelarance provisions two years ago in the Shelby County case. “The legislation will be formally introduced tomorrow by Senator Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, and leaders of the Black Caucus, Hispanic Caucus and Asian Pacific American Caucus in the House. Civil rights icon Representative John Lewis will be a co-sponsor.&#8…

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“Setting Congress Up to Fail”

…ed this draft on SSRN (forthcoming 17 Berkeley J. Afr.-Am. L. & Pol’y 97 (2015)).  Here is the abstract: In Shelby County v. Holder the Supreme Court invalidated key provisions of the Voting Rights Act of 1965 based on Congress’s failure to justify the formula used to determine which jurisdictions would be subject to the Act’s pre-clearance requirement of submitting all changes to voting procedures to the Justice Department for prior approval…

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A Key Thing to Watch if Government Loses at SCOTUS in King v. Burwell

…ar language through a revised statute. Roberts telegraphed his willingness to take such an approach in the 2013 Shelby County vs. Holder case, which struck down a key provision of the Voting Rights Act. The provision the Supreme Court declared unconstitutional defined which states had to get federal approval (or pre-clearance) before making changes to their voting laws. Roberts’ opinion for the majority ordered the provision struck because…

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“Holder Rips ‘Disconnected’ Supreme Court Ruling on Voting Rights”

…rying too hard to make it too difficult for the people to express their views,” Holder said, referring to Shelby County v. Holder, the 2013 decision that invalidated a key provision of the Voting Rights Act. Holder’s comments were part of his keynote address at the opening night gala of the American Constitution Society’s annual convention in Washington. Justice Ruth Bader Ginsburg is expected to speak on Saturday night. Without…

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Linda Greenhouse on #SCOTUS Term, and Evenwel in the Next

…ans in Texas, propelled to the court’s docket by the same legal team that brought us the Fisher case as well as Shelby County v. Holder, the 2013 case that gutted the Voting Rights Act. The theory behind the new case is that when noncitizens count – as they do everywhere in the country — in the population that must be spread evenly among electoral districts, the votes of citizens (presumably Latinos) in districts with large numbers of noncitizens…

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“New Voting Rights Litigation Summary from CLC Shows Growing Voter Dilution and Suppression Efforts Since Supreme Court’s Shelby County Decision”

…mply with a key provision of the Voting Rights Act as a result of the Supreme Court’s decision two years ago in Shelby County v. Holder.  Jurisdictions have also passed election restrictions designed to benefit one party over the other, often under the guise of improving already-efficient election procedures and preventing non-existent voter-fraud.  The Campaign Legal Center has filed suit to challenge a number of those laws and participated in o…

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“Don’t Be Silly – THE PCEA WORKED: A Rejoinder to Some Critics of Hasen’s Slate Piece”

…any influence over state and election laws; while renewal/revision of the Voting Rights Act in the wake of the Shelby County case would certainly re-establish Washington’s limited presence, the truth of the matter is that registration and voting are still almost exclusively the province of state and local governments. The next President (whoever s/he may be) and the 115th Congress will almost certainly be a constant source of debate over t…

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“Race, Federalism, and Voting Rights”

Guy Charles and Luis Fuentes-Rohwer have posted this draft on SSRN.  Here is the abstract: In Shelby County v. Holder, the Court struck down an important provision of the Voting Rights Act, section 4, on federalism grounds. The Court argued that Congress no longer had the power to enact section 4 because of the “federalism costs” imposed by the Act and because the Act violated “basic principles” of federalism. Unfortunately, the Cour…

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2015 Supplement to Election Law Casebook Coming Soon

…an edited version of of the Supreme Court’s new campaign finance case, McCutcheon v. FEC, an edited version of Shelby County v. Holder, and coverage of the Supreme Court’s consideration of new redistricting cases from Alabama and Arizona, raising new questions about racial gerrymandering claims and the scope of state power to enact citizen redistricting commissions for congressional districts via voter initiative. The supplement also consi…

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“Top Recent Downloads in Election Law on SSRN”

…Rank Downloads Paper Title 1 551 Do the Facts of Voting Rights Support Chief Justice Roberts’s Opinion in Shelby County? J. Morgan Kousser California Institute of Technology Date posted to database: 11 Apr 2015 Last Revised: 11 Apr 2015 2 87 A Checklist Manifesto for Election Day: How to Prevent Mistakes at the Polls Joshua A. Douglas University of Kentucky – College of Law Date posted to database: 24 Apr 2015 Last Revised: 24 Apr 201…

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“Dignity and Discriminatory Intent: What the Marriage Equality Cases Tell Us About Voter ID”

…sted this draft on SSRN (forthcoming University of Chicago Legal Forum).  here is the abstract: Two years after Shelby County v. Holder and United States v. Windsor, a good deal of litigation has addressed the legality of electoral restrictions like voter ID and bans on same-sex marriage. This Article examines the relationship between these two lines of cases. It argues that the greater deference accorded to state action in the voting cases is no…

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Call for Papers – Voting Rights Act Symposium

…h as the VRA and the Civil Rights Act. In light of the VRA’s 50th anniversary and recent SCOTUS decisions (from Shelby Co. to Ala. Legislative Black Caucus), we think it appropriate to devote enough space in one of our forthcoming editions to an articles symposium on point. As of now, though, the quantity and quality of articles we’ve received along this vein have been underwhelming, so we’re casting a wide net in soliciting contributions from su…

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“Only Voters Count? Conservatives ask the Supreme Court to restrict states’ rights and overturn precedent.”

…attacks on affirmative action at the Supreme Court in the Fisher v. University of Texas at Austin case and successfully got the Supreme Court to strike down a key portion of the Voting Rights Act in the Shelby County v. Holder case. It is an agenda not about states’ rights but about getting the Supreme Court to force states to empower conservatives and force onto all of us the theories of representation and power they envision….

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“Supreme Court ‘Litmus Test’ Emerges in White House Race”

…ter, Clinton told supporters in Iowa, “I will do everything I can do to appoint Supreme Court justices who will protect the right to vote and not the right of billionaires to buy elections.” Her reference to the right to vote suggests she would look for candidates who would overturn not only Citizens United but also the 2013 ruling in Shelby County v. Holder that found a key section of the Voting Rights Act unconstitutional.  …

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Breaking News: #SCOTUS to Hear One Person, One Vote Case

…the creation of electoral districts. Ed Blum, the force behind the Fisher anti-affirmative action case and the Shelby County case striking down a key portion of the Voting Rights Act is also behind this case. The question involves whether Texas can draw districts using total population rather than total voters, an issue especially important given non-citizen Latinos living in parts of Texas. The claim is that representatives from these areas wit…

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New Bill to Blunt Effect of Bad #SCOTUS Redistricting Ruling in Arizona Case

…congressional districts (although those districts were drawn by commissions). Perhaps there is a problem under Shelby County v. Holder‘s equal sovereignty provisions (that’s the case striking down the preclearance provisions of the Voting Rights Act applied only to some states) because this bill applies only to 6 states. There is a debate on this topic beginning on the election law listserv, although I think there is no way to know o…

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Symposium on Voting Rights in the Wake of Shelby County v. Holder

…Jackals, Tall Ships, and the Endless Forest of Lies: Foreword to Symposium on the Voting Rights in the Wake of Shelby County v. Holder Anthony Paul Farley PDF Eviscerating the Voting Rights Act and Moral Authority: Freedom to Discriminate Comes with a Price Patricia A. Broussard PDF Elimination Dance Sarah Jane Forman PDF The Past as Prologue: Shelby County v. Holder and the Risks Ahead J. Corey Harris PDF Demography and Democracy Phyllis Goldfa…

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#SCOTUS Remands North Carolina Racial Gerrymandering Case for Reconsideration

…rs into districts can no longer claim to do so to comply with Section 5 of the Voting Rights Act (thanks to the Shelby County case), they still may claim to do so to comply with Section 2 of the Act. Indeed, as Professor Justin Levitt has shown, minority packing and reliance on the Voting Rights Act have become a familiar tool for Republican legislatures looking to gain advantage by packing likely Democratic voters into a smaller number of distri…

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“Language Accommodations and Section 203 of the Voting Rights Act: Reporting Requirements as a Potential Solution to the Compliance Gap”

…re of federal voting changes to the language assistance context. In response to the Supreme Court’s decision in Shelby County v. Holder, academics and members of Congress have proposed a requirement that all election jurisdictions report to the local media and the government certain changes to their election laws before those changes take effect. This Note modifies and applies this general framework to address the low compliance rates of the VRA’…

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“Do the Facts of Voting Rights Support Chief Justice Roberts’s Opinion in Shelby County?”

…African-American and Latino elected officials, Chief Justice John Roberts contended in his majority opinion in Shelby County v. Holder that the problems of 2013 were much less grave than the “pervasive…flagrant…widespread…rampant” voting discrimination of 1965 and that the coverage formula was outmoded because “today’s statistics tell an entirely different story.” Neither the Chief Justice nor any scholars or civil rights propo…

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House Republicans to Push Bill Declaring “End to Racism” in U.S.

…ure American liberty.’ The resolution has begun to gain Senate support, including from Senator Richard C. Shelby (R-AL), who missed the commemoration of the 50th anniversary of the Selma civil rights march to participate in mundane events at the opposite end of Alabama. Senator Thad Cochran (R-MI) could not say whether or not he supported the resolution, or if he supported or opposed the Voting Rights Act, but declared that ‘racism is…

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Nick Stephanopoulos on the Alabama Redistricting Case

…require freezing districts’ minority population shares—also seems interesting but not too meaningful in a post-Shelby County world. But while the case was no blockbuster, there may be more to it than meets the eye. Here are a few reasons why it may have some lasting significance. First, it establishes that minority plaintiffs can prevail in racial gerrymandering suits. This point was not entirely clear since every previous plaintiff in suits of…

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Opinion Analysis: A Small Victory for Minority Voters, or a Case with “Profound” Constitutional Implications?

…tage of minority voters in each majority-minority district. Further, since the Supreme Court’s 2013 decision in Shelby County v. Holder,  holding the preclearance formula unconstitutional, eliminated the preclearance requirement for Alabama, compliance with Section 5 could no longer be a compelling interest to justify a racial gerrymander. * * * In the Supreme Court, Justice Kennedy sided with the more liberal Justices, over the objections of the…

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“The New Normal in Election and Political Law”

…in the past five years. The Supreme Court’s recent decisions in Citizens United v. FEC, McCutcheon v. FEC, and Shelby County v. Holder have systematically reshaped our campaign finance and voting rights regimes. We can expect these changes in the law to have significant, long-term effects on electoral politics. Yet most analyses have focused on these decisions’ individual impacts rather than their collective consequences on our political system….

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Future of Voting Rights Symposium

…Remarks of Robert Bauer Robert Bauer Remarks of Benjamin L. Ginsberg Benjamin L. Ginsberg Remarks of Myrna Pérez Myrna Pérez Remarks of Dale Ho Dale Ho Remarks of Julie Fernandez Julie Fernandez Remarks of Spencer A. Overton Spencer A. Overton Remarks of Samuel Issacharoff Samuel Issacharoff Questions and Answers Articles Voting Rights Litigation After Shelby County: Mechanics and Standards in Section 2 Vote Denial Claims Dale E. Ho  …

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“Shelby Missed Selma Ceremony, Citing Scheduling Conflicts”

…from Alabama was hours from Selma, participating in his annual tour of the state’s 67 counties. Sen. Richard C. Shelby’s office posted photos on Twitter from unrelated events with constituents in four counties, including an equipment company in Lamar County and a 3M facility in Marion County. According to his office, the Alabama Republican had previously scheduled the events in the northwest corner of the state…..Alabama’s junior senator, R…

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“North of Selma, black leaders ‘fighting the same battle’”

…nniversary of the “Bloody Sunday” march that helped to propel the passage of the Voting Rights Act. But this is Shelby County, a rural cluster of small towns, modest homes and farmland. It was here in 2013 that local officials won a major victory when the Supreme Court struck down a key provision of the federal law that resulted from those historic marches in Selma, especially the first, on March 7, 1965, when peaceful protesters at the Edmund Pe…

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“Audio Links: Alabama Law Review Symposium on the Voting Rights Act”

…ut its passage; the current state of voting rights law, with panelists discussing, among other things, both the Shelby County decision and the pending Alabama Legislative Black Caucus case; and the uncertain future of voting rights. It was an extraordinary day. The topic itself was suggested by the students themselves, not the dean or faculty; that itself was important, showing both the students’ willingness to acknowledge and confront our…

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New Appeal in Texas Redistricting Case

…constitutional doctrine of ‘one person, one vote’ to have any meaning, some metric of voters rather than non-voters must be the basis for creating legislative districts when conditions like those in Texas exist.”   Founded in 2005, the Project on Fair Representation has provided counsel in a number of cases heard by the U.S. Supreme Court including Shelby Co. Ala. v. Holder and Abigail Fisher v. Univ. of Texas.  …

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“Honor King’s Legacy By Protecting Voting Rights”

…RA, the most important civil-rights law of the twentieth century. If only that story had a happy ending today. Selma has been released at a time when voting rights are facing the most sustained attack since 1965. The Supreme Court gutted the centerpiece of the VRA in Shelby County v. Holder in June 2013. That followed a period from 2011 to 2012 when 180 new voting restrictions were introduced in 41 states, and 22 states made it harder to vote….

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“The Law of Democracy at a Crossroads: Reflecting on Fifty Years of Voting Rights and the Judicial Regulation of the Political Thicket”

…decisions continue to significantly impact this area. In 2013, the Court decided two major election law cases. Shelby County v. Holderinvalidated section 4(b) of the Voting Rights Act and raised important questions about the future of a super statute that had eliminated much of the racial discrimination in our political system.Arizona v. Inter Tribal Council reaffirmed the broad scope of congressional authority over elections. Last term, the Cou…

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“Racial Voting and Geography in the United States”

…that these voters are the most distinctive. We explore these findings with respect to the continued need for voting rights protections in certain areas of the country where racially polarized voting is at its highest levels, and recommend that Congress adopt a measure of racially polarized voting in an updated coverage formula for Section 4(b) of the Voting Rights Act, recently struck down by the U.S. Supreme Court in Shelby County v Holder….

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“The State as Witness: Windsor, Shelby County, and Judicial Distrust of the Legislative Record”

Bertrall Ross has posted this draft on SSRN (NYU Law Review).  Here is the abstract: More than ever, the constitutionality of laws turns on judicial review of an underlying factual record, assembled by lawmakers. Some scholars have suggested that by requiring extensive records, the Supreme Court is treating lawmakers like administrative agencies. The assumption underlying this metaphor is that if the state puts forth enough evidence in the recor…

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Top Recent Downloads in Election Law on SSRN

…cience Date posted to database: 7 Nov 2014 Last Revised: 7 Nov 2014 9 37 The Meme of Voter Fraud Atiba R. Ellis West Virginia University – College of Law Date posted to database: 22 Oct 2014 Last Revised: 2 Dec 2014 10 31 Devising a Standard for Section 3: Post-Shelby County Voting Rights Litigation Roseann R. Romano University of Iowa – College of Law Date posted to database: 24 Oct 2014 Last Revised: 24 Oct 2014…

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Another OpEd Suggesting Voter ID Affected Election Outcomes in 2014

…and, thus, were potentially impacted by severe cuts to early voting that the state passed mere months after the Shelby County decision. The Senate race there was decided by 48,511 votes. In Alabama, 250,000 to 500,000 voters were impacted by a new voter ID law and the governor’s race was decided by 320,139 votes. I remain deeply skeptical and think this kind of suggestive argumentation detracts from the major problem with state voter id laws: the…

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“Guest Blog: Janai Nelson, Race Reasoning in Alabama Redistricting: A View from the Supreme Court”

Here: If ultimately forced to draw a new plan in the current post-Shelby world, Alabama would no longer have Section 5 to rely on—for better or worse. Instead, it would have to take account of the Voting Rights Act’s other anti-discrimination weapon, Section 2, which prohibits any voting law that results in vote dilution or denial on account of race—and, of course, the constitution. Near the close of the argument, Justice Alito alluded to this p…

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“Governing and Deciding Who Governs”

…hat the Court is somehow removed from the arena of partisan politics. Part II discusses this claim with reference toBush v. Gore, Shelby County, and election-law disputes surrounding the 2014 midterms. The conclusion will consider what these rhetorical distancing strategies get the Court, and what a critical evaluation of them gets us. I heard this paper presented last week and it sounds terrific.  I can’t wait to read it!…

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