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

…tion 2.) 4. Looking at the totality of the circumstances, the court concludes the history of the rollback after Shelby County is very relevant here: Immediately after Shelby County, i.e., literally the next day, when “history” without the Voting Rights Act’s preclearance requirements picked up where it left off in 1965, North Carolina rushed to pass House Bill 589, the “full bill” legislative leadership likely knew it could not have gotten past f…

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Breaking: #SCOTUS Unanimously Rejects AZ Redistricting Challenge: Analysis

…ve deviated from perfect equality to comply with Section 5 of the Act, which the Court later gutted in the 2013 Shelby County case. It rejected the idea that because of the later Shelby case, reliance on Section 5 becomes suspect. Finally, the Court rejected the idea that this was a partisan gerrymander, obliquely recognizing the race or party question. Sure it was Democratic districts that were underpopulated, but that was because minority voter…

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

…can be to halt potentially discriminatory voting rules in the aftermath of the Supreme Court’s 2013 decision in Shelby County vs. Holder. “This is a perfect illustration of what we lost,” said Jon Greenbaum, chief counsel for the Lawyers Committee for Civil Rights Under Law. “We have seven judges who looked at this and all found a violation. Yet the law is still in effect.” The Supreme Court has refused to intervene so far. On the eve of the 2014…

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

…type of voting change that would have had to have been precleared by the Department of Justice before the Supreme Court’s disastrous ruling in Shelby County v. Holder,” said Harry Baumgarten, Legal Fellow with the Voting Rights Institute . “In gutting a key provision of the Voting Rights Act, the Supreme Court has opened the door for these potentially discriminatory measures to be passed and implemented throughout the country.”…

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“What if the Supreme Court Were Liberal?”

…Conservatives on the Court long have wanted to limit the scope of congressional power. For example, in 2013, in Shelby County, Alabama v. Holder, the Court struck down key provisions of the Voting Rights Act of 1965. This was the first time since the 19th century that the Court invalidated a federal civil-rights law dealing with race. In many states, it has led to significant new obstacles on the ability of minority voters to participate in elect…

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“Douglas and Mazo’s Election Law Stories”

…g the landmark decisions of Reynolds v. Sims, Bush v. Gore, Citizens United v. Federal Election Commission, and Shelby County v. Holder. The book relies on a unique encapsulated approach to storytelling, as each of its authors surveys an important doctrinal area in the field through the telling of his or her story. The volume’s thirteen cases concern the right to vote, redistricting and gerrymandering, campaign finance, and election administratio…

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

…cut the number of polling places by 2/3 would not have been possible before the Supreme Court decided the 2013 Shelby County v. Holder case because to do so Arizona, which had been covered by Section 5 of the Voting Rights Act, would have had to demonstrate (and likely would not have been able to demonstrate) that doing so would not have made protected minority voters in Maricopa County (lots of Latino and Native American voters) worse off.  So…

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“The Right to ‘Mobocracy’”

…ruled that a 1907 congressional ban on corporate contributions to political campaigns was unconstitutional, and Shelby County v. Holder, which overturned Section 4 of the Voting Rights Act of 1965—Mr. Waldman uses the word “eviscerated.” Yet Mr. Waldman’s proposed reforms deserve serious consideration. Reforming felon disenfranchisement laws, for example, is supported by figures on the right and the left. Providing for universally available pictu…

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Judge Merrick Garland: A Moderate Liberal on Election Law Issues, With Questions About Boldness

…g they would not make minority voters worse off. The Supreme Court eliminated preclearance the next year in the Shelby County case, and so this precise holding would no longer have direct relevance. Nonetheless, the tone of this opinion is one who takes seriously to protect voting rights. Judge Garland seems much less likely to go out on a limb, however. He was in a majority in a 2-1 per curiam case, Adams v. Clinton (2000),  rejecting D.C. resid…

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ELB Podcast Episode 10. Janai Nelson: Minority Voting Rights in 2016

What has happened to African-American voting rights after the Supreme Court’s 2013 decision in Shelby County v. Holder? Can the Voting Rights Act still protect minority voting rights in states such as Alabama and Texas? What are the prospects that a new Congress will step in to protect everyone’s right to vote? On Episode 10 of the ELB Podcast, we talk to the NAACP Legal Defense and Education Fund’s Janai Nelson. You can listen…

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“Alabama’s New Fight for Voting Rights”

…suppression—concerns that have taken on new urgency ahead of the first presidential election since the landmark Shelby decision. And Alabama provides a striking example of post-Shelby uncertainty among civil rights activists. In the nearly three years since the Shelby decision, the state’s implementation of the voter ID law has been something of a saga. In September 2015, for instance, following a budget cut by the Alabama Legislature, the…

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“The Voting Rights Act at 50: The Past, Present, and Future of the Right to Vote”

…he Voting Rights Act Joshua S. Sellers PDF Equal Sovereignty as a Right Against a Remedy Seth Davis PDF Reflections on Justice Thurgood Marshall and Shelby County v. Holder Wendy B. Scott PDF The Forgotten Provision of the Fourteenth Amendment: Section 2 and the Evolution of American Democracy Earl M. Maltz PDF The Necessity of the Voting Rights Act of 1965 and the Difficulty of Overcoming Almost a Century of Voting Discrimination Paul Finkelman…

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“A New Proposal to Address Local Voting Discrimination”

…t the Voting Rights Act today are grappling with doctrinal questions related to the Supreme Court’s decision in Shelby County v. Holder. Far fewer are examining the structural apparatus that remains for enforcing federal voting rights. This Article subjects that enforcement apparatus to scrutiny. It finds the remaining means to challenge voting impediments in the post-Shelby County world — (1) individual lawsuits by private citizens, (2) impact-l…

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Breaking: SCOTUS, Without Noted Dissent, Denies Stay in NC Redistricting Case. What Does It Mean?

…e there is time. Now of course virtually none of this would have happened if the Supreme Court had not ruled in Shelby County to strike down the trigger for the preclearance provisions of the VRA. North Carolina would have had to submit any new maps to DOJ, which then could have withheld preclearance if they made protected minority voters worse off. There’s a lot of confusion on the ground, and I expect that the three-judge court will quick…

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Revised Version of Paper on Election Law at the Roberts Court

…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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EAC’s Brian Newby Sued for Citizenship Form Decision

…er to vote is an unnecessary barrier, especially for communities of color.” “This is a part of our ongoing post-Shelby election administration monitoring across Georgia,” said Francys Johnson, Statesboro civil rights attorney and Georgia NAACP state president. “This case is illustrious of the insidious tricks, subterfuge, and attacks eviscerating the gains achieved under the VRA and the NVRA. The NAACP will mortgage every asset we have to defend…

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“Virginia Asks Court To Ignore Pre-1965 Discrimination In Voting Rights Case”

…otion said. However, according to UC-Irvine School of Law professor Rick Hasen, who runs Election Law blog, the Shelby County did not rule out the consideration of a state’s discriminatory history outright. “Shelby County tells us obviously you can’t make decisions just based on the past, but it doesn’t make it irrelevant for the purpose of figuring things out,” Hasen told TPM. Indeed, when Congress amended Section 2…

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“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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