“After Shelby County: Getting Section 2 of the VRA to Do the Work of Section 5″

Chris Elmendorf and Doug Spencer have written an important new paper that voting rights folks need to read: Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, lowcost tool for blocking potentially discriminatory changes in election law and administration. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome an…

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Justice Scalia’s Interesting Views of Shelby County and the “Equal Sovereignty” Principle

Eric Segall has an important guest post at Dorf on Law about a recent constitutional law conference in Atlanta.  Read the whole thing.  But for ELB purposes, the end is the most interesting, about a Q&A session with Justice Scalia where the Justice answered questions written on index cards: The very next unsigned question was one that I had written. I asked him how he could sign on to Justice Roberts’ opinion in the recent voting rights case…

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DOJ Shifts Voting Section Priorities after Shelby County Guts Section 5

From DOJ’s budget submission to Congress (p. 44): Because of the Shelby County case, the Voting Section’s work will necessarily shift to greater affirmative efforts to detect and investigate voting practices that violate federal law, to more affirmative litigation to enjoin such practices, and to additional monitoring of elections throughout the country each year. Resources previously devoted to Section 5 reviews are being shifted to moni…

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On the Road to Arguing for the Unconstitutionality of Section 2 of the Voting Rights Act

I’ve been sounding this alarm for a while, beginning with leading up to the Shelby County oral argument.  Opponents of the constitutionality of Voting Rights Act Section 5 made the claim, among others, that Section 5 was no longer necessary to protect minority voting rights because other provisions of the Act, including Section 2, would do that work.  Yet some of the very constitutional arguments against Section 5 (such as the argument tha…

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“Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder”

James Blacksher and Lani Guinier have posted this draft on SSRN (forthcoming, Harvard Law and Policy Review).  Here is the abstract: The “equal sovereignty” principle the Supreme Court majority relied on in Shelby County v. Holder to strike down the coverage formula in Section 4 of the Voting Rights Act is rooted in the jurisprudence of slavery. In the infamous 1857 case of Dred Scott v. Sandford, Chief Justice Roger Taney held that…

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Senator Ted Cruz Distorts Supreme Court’s Voting Rights Holding

By all indications Sen.Ted Cruz is a brilliant lawyer. So I take his mischaracterizing of the Supreme Court’s Shelby County case as being disingenuous and not simply misguided. Sen. Cruz writes: It is disturbing that new efforts are being made in the House and Senate to resurrect voting rules that were recently deemed unconstitutional by the Supreme Court. We should protect the civil rights of every American, and other sections of the Voti…

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Coming Late Summer: Legislation, Statutory Interpretation & Election Law: Examples & Explanations

I’ve turned in a completed first draft of this book, with the hopes that it will be out in time for fall classes. This book, part of Aspen’s great Examples & Explanations series, is a student-friendly treatise with questions and answers throughout the chapters testing the material. This book is designed to be a supplement in classes on Legislation, Statutory Interpretation, Election Law, Voting Rights, or Campaign Finance. It is…

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“Justice Ginsburg’s Umbrella”

Ellen Katz has posted this draft on SSRN (forthcoming, A Nation of Widening Opportunities? The Civil Rights Act at Fifty, Samuel Bagenstos and Ellen Katz, eds., University of Michigan Press, 2014).  Here is the abstract: This Essay relies on an analogy pressed in the dissenting opinion in Shelby County v. Holder to describe an increasingly prominent conception of federal anti-discrimination law. It is a conception that sees the existing regime t…

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DOJ Changes Its Page Describing Section 5 of the Voting Rights Act

On February 17 I noted that the DOJ page on Section 5 gave no indication that Shelby County had been decided and that section 5 was no longer being enforced against previously covered jurisdictions. The page has now been updated, with a top section reading:   The Shelby County On June 25, 2013, the United States Supreme Court held that it is unconstitutional to use the coverage formula in Section 4(b) of the Voting Rights Act to determine…

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“Responding to Shelby County: A Grand Election Bargain”

…ion in Arizona v. Inter Tribal Council of Arizona. Part I of the article briefly describes what Shelby County did, setting the stage for discussion of the Voting Rights Act’s actual and perceived effects on election administration. Part II assesses what the preclearance regime was doing before Shelby County, showing that Section 5 was mostly used to stop vote dilution, but did relatively little to stop the new vote denial. Part III examines the e…

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“EXCLUSIVE: Latest Herron & Smith: ‘Race, Shelby County, and the Voter Information Verification Act in North Carolina’”

New research from Michael Herron and Dan Smith: Abstract Shortly after the Supreme Court in Shelby County v. Holder struck down Section 4 of the Voting Rights Act (VRA), the state of North Carolina enacted an omnibus piece of election-reform legislation known as the Voter Information Verification Act (VIVA). Prior to Shelby portions of North Carolina were covered jurisdictions per the VRA’s Sections 4 and 5—meaning that they had to seek federal…

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“The ‘Voting Rights’ Partisan Power Play”

Mike Carvin and Hans von Spakovsky WSJ oped: “In reaction to the U.S. Supreme Court’s Shelby County v. Holder decision last June, Rep. Jim Sensenbrenner (R., Wis.) and Sen. Patrick Leahy (D., Vt.) have introduced the Voting Rights Amendment Act of 2014. The stated purpose is to prevent racial discrimination. But what it would really do is force racial gerrymandering, make race the predominant factor in the election process, and advan…

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Top Recent Downloads in Election Law on SSRN

…14 Rank Downloads Paper Title 1 115 Universalism and Civil Rights (with Notes on Voting Rights after Shelby) Samuel R. Bagenstos, University of Michigan at Ann Arbor – Law School – Faculty, Date posted to database: December 16, 2013 Last Revised: December 18, 2013 2 101 Unteachable: Shelby County, Canonical Apostasies, and Ways Forward for the Voting Rights Act Kareem U. Crayton, Terry Smith, University of…

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“The Voting Rights Act in Winter: The Death of a Superstatute”

Guy Charles and Luis Fuentes-Rohwer have posted this draft on SSRN.  Here is the abstract: The Voting Rights Act, the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand the voting rights questions of today. Voting rights l…

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Upcoming Speaking Engagements

Jan. 25 Federalist Society western conference (on panel with Ken Miller, Dan Kolkey, and Justin Levitt–and moderated by 9th Circuit Judge Ikuta—on Has the United States Supreme Court killed California’s initiative process or helped check its abuses?) Jan. 28  Voting Rights Under Fire? The Value of a Vote Post Shelby County (OC Bar/ADL/UCI Law/Orange County Jewish Bar Association Event) Feb. 7 The Future of Campaign Finance Reform (Ho…

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Quote of the Day, MLK Day Edition

“[Justice Ginsburg's dissent in Shelby County] got it right when she said throwing out the existing process when it’s working and continues to work is like throwing away an umbrella in a rainstorm because you’re not getting wet…And now we’re in a hailstorm.” –Vice President Joe Biden, quoted by the Washington Times, at MLK Day event….

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“State’s Rights, Last Rites, and Voting Rights”

…d this interesting draft on SSRN. Here is the abstract: There are two ways to read the Court’s decision in Shelby County, as a minimalist decision and as a decision that has undermined the basic infrastructure of voting rights policy, law, and jurisprudence. In this Essay, we present the case for reading Shelby County as deeply destabilizing. We argue that Shelby County has undermined three assumptions that are foundational to voting rights…

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Initial Thoughts on the Proposed Amendments to the Voting Rights Act

I have now had a chance to review the text the Voting Rights Amendments Act of 2014 introduced today by Representatives Sensenbrenner and Conyers (with parallel legislation being introduced by Senator Leahy in the Senate). I believe parts of the VRAA are likely constitutional (including the new coverage formula), parts are likely unconstitutional (new bail in), and most of it is sensible policy.  But I am very pessimistic about the legislation p…

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What the New Voting Rights Act Bill Means

The proposed legislation (Berman summary here, bill text here) is just a first draft, but it shows that a bipartisan Voting Rights Act is possible.  In a nutshell, here’s what it means . . . . Recent Discrimination:  The new bill responds to the Supreme Court’s Shelby County opinion by tying preclearance to recent instances of discrimination (both with the new coverage formula and enhanced bail-in). Deterrence:  Pre-Shelby preclearance deterred…

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ELB Vacation Quick Hits

NYT’s Nick Confessore on new rivals to Rove’s Crossroads Super PAC. Wiley Rein defends its $2 million fee request from government in Shelby County voting rights case. and David Keating, Letter to Senator Richard J. Durbin, Center for Competitive Politics (September 16, 2013) makes the Green Bag’s list of Exemplary Legal Writing in 2013….

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Blog Downtime, Blogging Break, and Happy Holidays!

On Saturday the Election Law Blog will be down for maintenance. Blogging will be light through New Years–regular ELB News and Commentary mailings for Election Law listserv members will resume on January 6. Once again it has been a busy year for the Election Law Blog and 2014 promises some big news in the area of voting rights, campaign finance, filibuster reform/political polarization and other topics. More posts from ELB regular commentat…

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“Universalism and Civil Rights (with Notes on Voting Rights after Shelby)”

Sam Bagenstos has posted this important draft on SSRN (forthcoming Yale Law Journal).  Here is the abstract: After the Supreme Court invalidated the core of the Voting Rights Act’s preclearance regime in Shelby County v. Holder, civil rights activists proposed a variety of legislative responses. One set of responses, which gained quick favor in influential precincts in the legal academy, sought to move beyond measures like the Voting Rights Act…

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My Testimony to the Joint California Legislative Committee on the Future of the Federal Voting Rights Act

As noted, there’s a joint hearing Thursday morning at the California legislature on the federal Voting Rights Act. You can read my prepared testimony here. I address four issues related to the U.S. Supreme Court’s Shellby County decision: First, I will explain the Supreme Court’s decision: what led to it, what did the Court hold, and why?  Second, I will explain what parts of the federal Voting Rights Act remain enforceable at the p…

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“Unteachable: Shelby County, Canonical Apostasies, and Ways Forward for the Voting Rights Act”

…sted this draft on SSRN.  Here is the abstract: In this paper, we analyze the Supreme Court’s decision in Shelby County, Alabama v. Holder, which declared unconstitutional the coverage formula for Section 5 preclearance. We conclude that Shelby County is a radical departure not only from the Supreme Court’s Voting Rights Act jurisprudence but also from canons of statutory construction more generally. While the Court’s decision h…

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In Fascinating Case, Judge Orders New Elections in Palmdale under CA Voting Rights Act

A Los Angeles County superior court judge has issued this tentative remedial order (following this ruling on the merits) that the City of Palmdale’s at large elections violate the California Voting Rights Act. I am about to talk about this on KPCC.  (Update: You should be able to listen to the archived interview a bit later here.) Here is the Daily News story; here is the one in the LA Times. There are many fascinating issues, assuming thi…

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Top Recent Downloads in Election Law on SSRN

Here: RECENT HITS (for all papers announced in the last 60 days) TOP 10 Papers for Journal of LSN: Election Law & Voting Rights (Topic) October 4, 2013 to December 3, 2013 Rank Downloads Paper Title 1 179 Race or Party? How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere Richard L. Hasen, University of California, Irvine – School of Law, Date posted to datab…

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Election Law in the New Issue of Harvard Law Review

The November issue includes three items discussing Shelby, Inter-Tribal, or both: FOREWORD Equality Divided Reva B. Siegel COMMENTS Beyond the Discrimination Model On Voting Samuel Issacharoff LEADING CASES CONSTITUTIONAL LAW Elections Clause — Federal Preemption of State Law — Federal Voter Registration — Arizona v. Inter Tribal Council of Arizona, Inc. In addition, at the online Harvard Law Review Forum, you will find, responding to Samue…

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“LAA Annual Fall Conference: The Future of Voting Rights”

Video: 2013 Law Alumni Association (LAA) Annual Fall Conference: “The Future of Voting Rights” The conference, co-sponsored by the NYU Law Alumni Association and the Journal of Legislation and Public Policy, took place on Wednesday, November 13, 2013. Voting is an inherent constitutional right that determines the makeup of our government and the direction of our democracy. Historically, many groups have fought economic, racial, and g…

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“Is the VRA Still Necessary?: Attitudinal Support of Electoral Reform in a Post-Jim Crow Era”

A group of researchers at the University of Maryland have posted this draft on SSRN.  Here is the abstract: The Supreme Court’s recently issued opinion in Shelby County, Alabama v. Holder (2013) declared an important part of the Voting Rights Act (VRA) unconstitutional, finding the 2006 reauthorized coverage formula to be inappropriate for an era where race based electoral discrimination has declined significantly. Interrogating the “Bull Conno…

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“Wiley Rein Seeks $2M in Fees in Voting Rights Case”

BLT: The lawyers who successfully challenged the Voting Rights Act before the U.S. Supreme Court earlier this year are seeking $2 million in legal fees from the federal government. U.S. Department of Justice lawyers and attorneys from Wiley Rein, who represented Shelby County, Ala., in the voting rights dispute, are expected to fight over two issues: whether the challengers are entitled to fees in the first place and whether $2 million is too m…

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“The Right to Vote”

Norm Ornstein: It is becoming increasingly obvious that the Supreme Court decision in Shelby County v. Holder, which eviscerated the Voting Rights Act, is leading to a new era of voter suppression that parallels the pre-1960s era—this time affecting not just African-Americans but also Hispanic-Americans, women, and students, among others. The reasoning employed by Chief Justice John Roberts in Shelby County—that Section 5 of the act was such a s…

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“Section Two Minus Section Five”

Nick Stephanopoulos has posted this draft on SSRN (forthcoming, Supreme Court Review).  Here is the abstract: In Shelby County v. Holder, the Supreme Court dismantled one of the two pillars of the Voting Rights Act: Section 5, which had barred southern jurisdictions from changing their election laws without receiving prior federal approval. But the Court left standing the VRA’s other pillar: Section 2, which prohibits racial discrimination in vo…

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North Carolina and Racial Redistricting

…utcomes on actual politics and policymaking in the state over the next decade. Before the Supreme Court’s Shelby County decision, the state trial court upheld this redistricting plan.  It is now pending before the state Supreme Court, which among other things, will have to determine if Shelby County has any bearing on the issues.  Depending on the outcome, the case could find its way to the U.S. Supreme Court. Although I very rarely sign on…

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Breaking: Judge Posner Admits He Was Wrong in Crawford Voter ID Case

Wow. My transcription from HuffPostLive: In response to Mike Sacks’s questions about whether Judge Posner and the 7th circuit got it wrong in Crawford case, the one upholding Indiana’s tough voter id law against constitutional challenge: “Yes. Absolutely. And the problem is that there hadn’t been that much activity with voter identification. And … maybe we should have been more imaginative… we…. weren…

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“Shelby County and the End of History”

Joel Heller has posted this draft on SSRN (forthcoming, University of Memphis Law Review).  Here is the abstract: In Shelby County v. Holder, the Supreme Court largely ignored history. Striking down a central provision of the Voting Rights Act of 1965 (“VRA”), the Court suggested that the past was a minimal, and perhaps irrelevant, consideration in determining whether federal oversight of state election laws was necessary. The Court…

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“Voting Rights Struggles Face Legislative Hurdles”

Release: In a report released today, voting rights organization Project Vote analyzes all of the voting related bills introduced, passed, or rejected across the country since the beginning of 2013, and finds that the trend towards disenfranchising legislation has not only continued but accelerated following the Supreme Court’s recent ruling on the Voting Rights Act. According to the report, Election Legislation 2013: Legislative Threats and Oppo…

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Tokaji’s Election Law in a Nutshell, Now in Print

Now available from West: my Election Law Nutshell, which includes discussion of Shelby County and other cases from the 2012-13 Supreme Court term.  It’s designed as a study aid to students taking courses in Election Law, Law of Democracy, Law of the Political Process, Legislation, and Voting Rights, as well as a useful starting point for practitioners and others with an interest in the field.  Barnes & Noble has it in stock.  Amazon sa…

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