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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“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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