“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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The VRAA and the Future of Voting Rights Enforcement

For those following today’s hearings, I have an editorial today in the National Journal.  It notes the continuities between the VRAA’s enforcement strategy and that used in other regulatory arenas, something I’ve written about in the past.  It also draws upon Ellen Katz’s great piece on Section 5 enforcement in South Carolina….

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“Shelby County One Year Later: Good for Voting Rights?”

Franita Tolson: “Despite these developments, the lesson of Shelby County should not be that states have broad authority to impose restrictive voting regulations. The true lesson of the decision, one year later, is that even the most painful and costly loss can be a vehicle for effectuating change. The loss of the preclearance regime forced advocates to be more aggressive in using creative legal arguments and obscure statutory provisions in…

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One Year After Shelby County

…loak of judicial minimalism, Chief Justice John G. Roberts Jr., writing for a conservative Supreme Court majority in Shelby County v. Holder, cripples Section 5 of the Voting Rights Act. The court pretends it is not striking down the act but merely sending the law back to Congress for tweaking; it imagines that Congress forced its hand; and it fantasizes that voting discrimination in the South is a thing of the past. None of this is true.  …

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VRAA DOA?

…ess did not act, even after the Supreme Court’s ruling in NAMUDNO in 2009 warning the act was unconstitutional. Shelby County‘s equal sovereignty principle now hangs out there as the law. In the meantime, AG Holder has antagonized Texas Republicans and Tea Party types by going after Texas and North Carolina for bail in. Texas Republicans will not be happy they get covered again under the new VRAA coverage formula. Conservatives in the House will…

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How is the SCOTUS Opinion in Bond Like NAMUDNO?

…ding the political branches a window of time in which to take action. This hesitancy was nowhere to be found in Shelby County, Alabama v. Holder, which the Court chose to hear despite the absence of a circuit split. By exhibiting a high degree of restraint in the moment, Northwest Austin ironically established the groundwork for Shelby County‘s subsequent invalidation of a key federal statute with bipartisan support in Congress. Bond looks a lot…

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Top Recent Downloads in Election Law on SSRN

…in University of Chicago – Law School Date posted to database: 11 Apr 2014 Last Revised: 17 May 2014 6 30 Shelby and Section 3: Pulling the Voting Rights Act’s Pocket Trigger to Protect Voting Rights after Shelby County v. Holder Paul M. Wiley Washington and Lee University – School of Law Date posted to database: 9 Apr 2014 Last Revised: 9 Apr 2014 7 30 Compulsory Voting and the Attitudinal Deconsolidation of Democracy Shane P….

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Volume 13:2 of ELJ Now Available, With 2-Week Free Access to AALS Symposium Articles

…7. Abstract | Full Text PDF or HTML | Reprints | Permissions AALS Symposium: The Right to Vote from Reynolds to Shelby County and Beyond Voter Viewpoint Discrimination: A First Amendment Challenge to Voter Participation Restrictions Lori A. Ringhand Election Law Journal: Rules, Politics, and Policy. June 2014, 13(2): 288-309. Abstract | Full Text PDF or HTML | Reprints | Permissions The Play in the Joints of the Election Clauses Derek T. Muller E…

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“Savior Through Severance: A Litigation-Based Response to Shelby County v. Holder”

…s-Civil Liberties Law Review). Here is the abstract: On June 25, 2013, the Supreme Court issued its decision in Shelby County v. Holder, ruling that the coverage formula in Section 4(b) of the Voting Rights Act is unconstitutional and “can no longer be used as a basis for subjecting jurisdictions to preclearance” under Section 5. In the four months after Shelby County was decided, sixteen states enacted restrictions on voting that Republicans bel…

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Federal District Court Denies $2 Million Attorneys Fees Request to Shelby County Plaintiffs

You can find Judge Bates’ 35-page thoughtful opinion here (via Mike Scarcella). The judge’s main point is that Congress did not intend attorneys fees in cases in which a plaintiff was not enforcing voting rights under the Fifteenth Amendment but instead was seeking to overturn a congressional statute enforcing voting rights. It seems a sensible result to me, but it raises a number of issues of first impression, so there could be an a…

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“The Play in the Joints of the Election Clauses”

…highlights the uncertainty in two recent Supreme Court opinions, Arizona v. Inter Tribal Council of Arizona and Shelby County v. Holder, and notes that the Court’s jurisprudence has left considerable “play in the joints,” not necessarily because the Election Clauses are in tension, but because of its unwillingness to explain how matters like voter identification and registration should probably be allocated. It identifies some i…

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“The Voting Rights Amendment Act of 2014: A Constitutional Response to Shelby County”

ACS: ACS is pleased to distribute “The Voting Rights Amendment Act of 2014: A Constitutional Response to Shelby County,” an Issue Brief by William Yeomans, Fellow in Law and Government, American University Washington College of Law; Nicholas Stephanopoulos, Assistant Professor of Law, The University of Chicago Law School; Gabriel J. Chin, Professor of Law, University of California-Davis School of Law; Samuel Bagenstos, Professor of Law, Th…

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SCOTUS’s Recycled Outtakes?

…e state through the initiative process can ban affirmative action). But the comment got me wondering how much other recycling we’ve seen.  How much of Justice Stevens’ Citizens United dissent came from the draft Souter dissent which did not see the light of day?  How much of Justice Ginsburg’s Shelby County dissent was originally draft (by whom?) for NAMUDNO. I guess our grandchildren might find out when papers are released….

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Justice Sotomayor’s Schuette Dissent Talks of Shelby County and Voting Rights

…he reference.  There are a number of election cases mentioned in the dissent, including these references to the Shelby County decision, striking down a key part of the Voting Rights Act. 11. Attempts by the majority to make it more difficult for the minority to exercise its right to vote are, sadly, not a thing of the past. See Shelby County v. Holder, 570 U. S. ___, ___ (2013) (slip op., at 15–17) (GINSBURG, J., dissenting) (describing recent ex…

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New Ed Blum Voting Rights Lawsuit in Texas

…Morrissey of Wiley Rein, LLP in Washington, D.C. are counsel for the Plaintiffs. They successfully represented Shelby Co. Alabama in Shelby Co. Ala v. Holder and Abigail Fisher in Fisher v. Univ. of Texas last term at the U.S. Supreme Court.  Also representing the Plaintiffs is Meredith B. Parenti of Parenti Law PLLC in Houston, Texas.   Edward Blum, director of the Project on Fair Representation, said, “One-person, one-vote is the cornerstone o…

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