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

…ece 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 swayed the course of the law. Advoca…

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Three-Judge Court Rejects One Person, One Vote Challenge to Texas Redistricting Plan

Plaintiffs alleged that the legislature needed to use equal voter populations and not just equal total populations in each district. The three-judge court held that the total population measure is not constitutionally required. This case was brought by Ed Blum’s outfit, which brought us Shelby County and Fisher.  A direct appeal to the Supreme Court is possible….

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

…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 courts to require jurisdictions whose vo…

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SCOTUS Adds Argument Time in Alabama Redistricting Case for Federal Government

…districts and then (2) strike the Act itself as an unconstitutional race-based statute in violation of the Equal Protection Clause. It seems unlikely that the Court would use this case as the vehicle to reach that result, but the potential for the same Court which decided Shelby County to declare more of the Voting Rights Act unconstitutional lurks in the case’s background and appears to be making voting rights advocates nervous….

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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”

…ee 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 the jurisdiction’s subsequent voting-related changes to be approved by the court before they can go into eff…

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“Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule”

Jack Chin has posted this draft on SSRN (forthcoming, Boston University Law Review).  Here is the abstract: In Shelby County v. Holder, the Supreme Court invalidated Section 4 of the Voting Rights Act of 1965, which required certain jurisdictions with histories of discrimination to “preclear” changes to their voting practices under Section 5 before those changes could become effective. This Article proposes that Congress ground its responsive vo…

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President Obama Talks Voting Rights and Fraud With Jeffrey Toobin

…ve been considered a fairly radical step, but it’s a step that the Supreme Court took.” He was referring to the Shelby County decision, of 2013, which invalidated the portion of the law that required Justice Department review of electoral changes, mostly in Southern states. In response, Obama offered a modulated criticism. As he put it, “The fact that the Supreme Court didn’t seem to internalize evidence where state election officials or politici…

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“Laws in the 21st Century Thursday, Oct. 23, 2 p.m. EDT CSG eCademy”

…Indiana law requiring voters to provide photo IDs at the polls on Election Day. The high court’s 2013 ruling in Shelby County v. Holder blocked two provisions of the Voting Rights Act: Section 5, which required select states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices; and Section 4(b), which contained the coverage formula that determined which select jurisdictions were su…

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

…lows up with a bail-in order, Texas could become the first state brought back under a preclearance regime since Shelby County.” Getting Texas and North Carolina covered again under the Bail In provisions of the Voting Rights Act has been a key strategy of the U.S. Justice Department. These are test cases, and it is an extremely high hurdle. Not only does DOJ have to prove the state engaged in intentional racial discrimination in voting, but…

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Don’t Get Too Excited That #SCOTUS Blocked Wisconsin’s Voter ID Law This Election

…stitution or the Voting Rights Act so expansively. Indeed, many of us were apoplectic when the Supreme Court in Shelby County struck down the preclearance provisions of the Voting Rights Act in 2013 precisely because we knew that these other tools for policing cutbacks in early voting were unlikely to be successful given how the courts had already interpreted the scope of these provisions. For the most part, it has been Democratic and more libera…

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BREAKING: Federal Court Strikes TX ID Law

…lows up with a bail-in order, Texas could become the first state brought back under a preclearance regime since Shelby County. I’ve said before that in Texas, the case for federal supervision under the Voting Rights Act flips “New York, New York” on its head: If you can make it anywhere, you can make it there.  Stay tuned for appellate proceedings on this case … and also an impact on the pending redistricting litigation, w…

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The Virginia redistricting decision

…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 hamhanded rather than nuanced, and therefore unconstitutiona…

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

…rvative side aimed at shrinking voting rights or loosening campaign finance rules (Citizens United, McCutcheon, Shelby County).  Today’s emergency petition from voting rights advocates in Wisconsin is somewhat of an exception, but the petition raises issues not about voting rights more broadly, but about changing rules mid-election, an issue on which I think voting rights advocates could win. But today’s Supreme Court grants to hear t…

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

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

…ejected a constitutional challenge to Indiana’s voter identification law, and in 2013, the Supreme Court in the Shelby County case struck down a key portion of the Voting Rights Act providing that states with a history of racial discrimination in voting get approval before making changes to their voting rules and procedures. Freed by these rulings, Republican legislatures have imposed tougher voter ID laws, cutbacks in early voting, limitations o…

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

…rea had stopped by the end of the 1930s. Of course health care involves commerce. Perhaps number three would be Shelby County, involving essentially the destruction of the Voting Rights Act. That act had a voluminous legislative history. The bill extending the Voting Rights Act was passed overwhelmingly by both houses, Republicans and Democrats, everyone was on board. The Court’s interference with that decision of the political branches seemed to…

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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 milestone in the effort to protect voting rights even after the Supreme Court’s deeply misguided decision in Shelby County.  The Justice Department filed an amicus brief supporting those who brought this challenge under Section 2 of the Voting Rights Act.  The appeals court’s ruling means that early voting can begin in Ohio on Tuesday, just as it had in prior election cycles. Separately, in Wisconsin, we are carefully monitoring a challenge to…

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Message from AALS Election Law Section

…regarding voting rights, from the Supreme Court’s recent invalidation of the Section 4 coverage formula in its Shelby County decision – essentially rendering Section 5 inoperable – to Congress’s consideration of a Voting Rights Act Amendment, to the report of the bipartisan Presidential Commission on Election Administration.  Part of this inquiry will include a discussion of whether we have reached the ideals President Johnson aspired to 50 year…

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AALS Election Law Section Call for Papers

…regarding voting rights, from the Supreme Court’s recent invalidation of the Section 4 coverage formula in its Shelby County decision – essentially rendering Section 5 inoperable – to Congress’s consideration of a Voting Rights Act Amendment, to the report of the bipartisan Presidential Commission on Election Administration.  Part of this inquiry will include a discussion of whether we have reached the ideals President Johnson aspired to 50 year…

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

…mandering, 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 Voting Rights Act and made Section 5 inoperable, thus invalidating the procedural safeguards to prevent the implementation of voting regulations that may have discriminatory effect. It expresses further concern at the continued denial of the right of residents of the Distric…

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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)”

…changing U.S. Supreme Court decisions, including Citizens United, McCutcheon v. Federal Election Commission, andShelby County v. Holder and their impact on candidates, campaigns, PACs and Super-PACs, and the agencies charged with enforcement of the laws that govern. In this rapidly changing compliance environment, these industry leaders reflect on the challenges practitioners face, ranging from the defense of First Amendment free speech protectio…

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

…nder the Fourteenth 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 the…

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

…Keith 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 out…

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

…on 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 their electoral processes. This essay identifies the crucial prophylactic role the provision played in preventing the implementat…

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

…tutes in protecting voting rights for Section 5 of the Voting Rights Act, which the Supreme Court gutted in its Shelby County opinion from last year. 2. This ruling is at odds with the other major ruling on the use of Section 2 in these vote denial cases, the Frank v. Walker case. That case was a voting rights plaintiffs lawyer’s dream, reading Section 2 of the VRA and the Constitution’s equal protection clause expansively to broadly…

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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”

…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, Protecting Minority Voters: Our Work is Not Done challenges the…

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Top Recent Downloads in Election Law on SSRN

…o database: 15 Jun 2014 Last Revised: 15 Jun 2014 6 18 Savior Through Severance: A Litigation-Based Response to Shelby County v. Holder Cody Gray Princeton University Date posted to database: 2 Jun 2014 Last Revised: 2 Jun 2014 7 18 Towards a Feminist Electoral Geography Claire F. McGing National University of Ireland, Maynooth (NUI Maynooth) Date posted to database: 22 Jun 2014 Last Revised: 1 Jul 2014 8 17 Engineering an Election Jonathan Zittr…

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

…overage formula that determined which jurisdictions were subject to preclearance under the Voting Rights Act in Shelby v. Holder, Section 2 of the Voting Rights Act remains one of the department’s most powerful tools to protect voting rights.  Last year the department used Section 2 to file two lawsuits against the state of Texas to stop the newly enacted discriminatory voter ID law and and to obtain a ruling that the state engaged in intentional…

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

…ited 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 citizensh…

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An Anticipatory Overruling of #Abood in #Harris Case?

…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…

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About that #SCOTUS Unanimity…A Skeptical Note

…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 marriage, two issues not really on the agenda right now for the Court. And when this Court wants to duck tough issues it can: think of the last two affirmative action cases, Fisher and Schuette. Even though neither was 5-4, Fisher was a tota…

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