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…

Continue reading
Share

“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…

Continue reading
Share

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…

Continue reading
Share

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…

Continue reading
Share

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…

Continue reading
Share

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…

Continue reading
Share

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…

Continue reading
Share

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….

Continue reading
Share

“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…

Continue reading
Share

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.  …

Continue reading
Share

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…

Continue reading
Share

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…

Continue reading
Share

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….

Continue reading
Share

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…

Continue reading
Share

“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…

Continue reading
Share

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…

Continue reading
Share

“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…

Continue reading
Share

“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…

Continue reading
Share

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….

Continue reading
Share

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…

Continue reading
Share

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…

Continue reading
Share

Updated/Final Versions of Some of My Articles on Campaign Finance, Voting Rights

…heon, of Super PAC Contributions, Corruption, and the Proxy War over Coordination, forthcoming in the Duke Journal of Constitutional Law & Public Policy. I have posted the final version of Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform, 8 Harvard Law & Policy Review 21 (2014) I have posted the final version of Shelby County and the Illusion of Minimalism, 22 William and Mary Bill of Rights J. 713 (2014)…

Continue reading
Share

About that WSJ Article on VRA Section 3 and Travis Crum…

…ry state has always been subject to the Voting Rights Act. Section 5 pre-clearance—the kind the Court gutted in Shelby County—was traditionally applied in Southern states, true. But the VRA is more than just Section 5. And Section 3 has already been applied outside the “traditional” footprint of Section 5 pre-clearance: counties in Nebraska, South Dakota, California, and even the entire state of New Mexico have been under Section 3 pr…

Continue reading
Share

The Court and Institutional Realism: McCutcheon

…latures, and state courts. After developing this framework, the article applies it to the Supreme Court’s Shelby County decision, in which the Court struck down part of the Voting Rights Act, and shows that the case hinges on how formalist or realist the Court ought to be regarding Congress. The general struggle in how the law should conceive public institutions can be seen as the modern successor to the early 20th century tension between f…

Continue reading
Share

Harvard Law and Policy Review Publishes Symposium Issue: Elections In America

…sman John P. Sarbanes & Raymond O’Mara III Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform, Richard L. Hasen  Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote , James Blacksher & Lani Guinier  Responding to Shelby County: A Grand Election Bargain, Daniel P. Tokaji Redistricting Reform and the California Citizens Redistricting Commission, Angelo N. Ancheta…

Continue reading
Share

“Formulating Voting Rights Act Remedies to Address Current Conditions”

…inority voters. Based on analysis of congressional elections from 1960 to 2010, I assess the central holding of Shelby County, Alabama v. Holder, and other controversial areas of VRA enforcement. My results support the Court’s finding that the Act’s historic coverage formula does not accurately reflect current political conditions. However, my results challenge prevailing views on two points. I conclude that uniform standards are problematic beca…

Continue reading
Share

“Shelby and Section 3: Pulling the Voting Rights Act’s Pocket Trigger to Protect Voting Rights after Shelby County v. Holder”

…SSRN (forthcoming, Washington and Lee Law Review).  Here is the abstract: The Supreme Court’s decision in Shelby County v. Holder presents voting rights advocates with a difficult challenge: finding an effective substitute for the preclearance regime struck down by the Court. The best possible alternative may live within the Voting Rights Act itself in Section 3(c)’s “pocket trigger.” Section 3(c) permits a federal court t…

Continue reading
Share

Thomas Alone on Campaign Finance?

…he ability of the state of Washington to make public the names of voters signing referendum petitions. Again in Shelby County v. Holder, the 2013 blockbuster case preventing Congress from enforcing a part of the Voting Rights Act which required states with a history of racial discrimination in voting to get approval before making changes in their voting rules, Thomas alone would have gone farther than the majority. While the majority struck the c…

Continue reading
Share

Top Recent Downloads in Election Law on SSRN

…ads Paper Title 1 167 Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder James Uriah Blacksher and Lani Guinier Attorney at Law and Harvard Law School Date posted to database: 24 Feb 2014 Last Revised: 24 Feb 2014 2 92 The 2013 Philippine Mid-Term Election: An Empirical Analysis of Dynasties, Vote Buying and the Correlates of Senate Votes Ronald U. Mendoza, Mario Antonio Lopez, David…

Continue reading
Share

Are Things Getting Better with Restrictive Voting Laws? The Answer is Unclear

…ngressional legislation some of the protections of the Voting Rights Act lost through the Supreme Court’s Shelby County decision are uncertain at best. The U.S. Election Assistance Commission, which has a crucial role in certifying voting technology and providing best practices for states and localities running elections, is still dead, thanks to a blockage by Republicans of nominees in the Senate. So are things really getting better?  I th…

Continue reading
Share

Re: From the Hobby Lobby oral argument: Should legislation passed by unanimous vote be invalidated or narrowly construed?

…mplications as well. Just a few things that popped out at me while reading Will’s piece: 1. On Justice Scalia’s Shelby County v. Holder comment that the unanimous vote in favor of renewing the VRA was about the “perpetuation of racial entitlement” and the difficulty of undoing such entitlements through the normal legislative process:  Much has been written about this comment, but what strikes me is that it seems almost like a cousin—a hostile cou…

Continue reading
Share

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

…itten 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 and almost wholly ineffective at blocking c…

Continue reading
Share

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

…t I had written. I asked him how he could sign on to Justice Roberts’ opinion in the recent voting rights case (Shelby County v. Holder) which announced a brand new constitutional principle-that Congress could not treat different states differently without a really strong reason-given that this limitation is nowhere in the text of the Constitution nor supported by its original meaning.  Scalia fumbled a bit, said he didn’t read the case that way,…

Continue reading
Share

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 monit…

Continue reading
Share

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…

Continue reading
Share

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

…).  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 black Americans, slave or free, were not members of the sovereign people and could never be “citizens&…

Continue reading
Share

Senator Ted Cruz Distorts Supreme Court’s Voting Rights Holding

…ll 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 Voting Ri…

Continue reading
Share