Verrilli’s Regret

…From must-read Adam Liptak exit interview with the outgoing SG: The loss he most regrets, Mr. Verrilli said, was in 2013, in Shelby County v. Holder, which effectively struck down the heart of the Voting Rights Act of 1965. “There are some powerful real-world consequences that followed very quickly from that decision,” he said. “It was an iconic statute and an important part of American history. That was a tough loss.”…

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“Democracy Diminished: LDF Releases Report on State and Local Threats to Voting Rights Three Years After Landmark Shelby County Decision”

…to Voting Post- Shelby County, Alabama v. Holder (Shelby County), a detailed collection of state, county, and local voting changes — proposed or implemented — during the past three years since the Supreme Court’s decision in Shelby County, Alabama v. Holder. The Court’s decision in Shelby County eliminated the provision of the Act that for fifty years required jurisdictions with a history of voting discrimination to submit proposed changes to a…

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“Voter Welfare: An Emerging Rule of Reason in Voting Rights Law”

…ry intent or statutory protections of minority voting opportunity. Although only some of these challenges arise in jurisdictions that were formerly covered by Section 5 of the Voting Rights Act, the Supreme Court’s ruling in Shelby County further compels a new legal approach to these cases. This article begins with the observation that, at least thus far, courts have been remarkably sympathetic to these new claims of voter exclusion, even…

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“Inventing Equal Sovereignty”

…013 decision in Shelby County v. Holder relied on the “fundamental principle” and “historic tradition” of equal sovereignty to hold one of the Voting Rights Act’s key provisions unconstitutional. Yet almost three years after Shelby County, and despite a recent wave of equal sovereignty challenges to major federal programs, the equal sovereignty principle remains largely unexamined. This Article seeks to provide some clarity—both to establish the…

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Major New Edition of “The Law of Democracy,” (Issacharoff, Karlan, Pildes, Persily) Available for Fall

…Act. We have shortened the legislative history of Section 2, and tightened our coverage of Section 2 vote-dilution claims, while adding coverage of Section 2 vote-denial claims. In the wake of the Supreme Court’s decision in Shelby County v. Holder, we have streamlined significantly our coverage of the preclearance regime of Section 5, while preserving the core issues that continue to have current implications. We’ve managed to revise the…

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2016 Supplement for Lowenstein, Hasen, and Tokaji Election Law Casebook Coming in time for Fall Classes

…d Materials is up to date through the end of the Supreme Court’s October 2015 term. It includes excerpts of the Supreme Court’s decisions in McCutcheon v. FEC and other post-Citizens United campaign finance cases, as well as Shelby County v. Holder, which struck down a key provision of the Voting Rights Act. This year’s supplement covers recent redistricting cases from Alabama, Arizona, Texas, and Virginia, including Evenwel v. Abbott, the…

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“U.S. judge upholds Virginia voter ID law”

…the Fifteenth Amendment, or the Twenty-Sixth Amendment,” U.S. District Judge Henry E. Hudson wrote Thursday. You can read the 62 page opinion here. Virginia’s law is not as strict as some other laws being challenged, and in all of these challenges, the standards for winning are quite difficult for plaintiffs. This is why the loss of Section 5 preclearance thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder…

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“Uncovering the Voting Rights Act: The Racial Progress Argument in Shelby County”

…d exceptional legislation back then is no longer prevalent or flagrant. This perspective can be summed up with the motif, “that was then, this is now.” In this Article I reconstruct the majority’s racial progress argument in Shelby County, and raise some concerns about ways of answering it that merely replace a conservative narrative about racial progress with a liberal one. Although I am partial to the latter narrative, and believe that the…

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

…rship likely knew it could not have gotten past federal preclearance in the pre–Shelby County era. McCrory, 997 F. Supp. 2d at 336. Thus, to whatever extent the Supreme Court could rightly celebrate voting rights progress in Shelby County, the post-Shelby County facts on the ground in North Carolina should have cautioned the district court against doing so here. 5. Looking at local factors and history, and and undisputed evidence that the…

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Breaking: #SCOTUS Unanimously Rejects AZ Redistricting Challenge: Analysis

…ourt directly holds that in this case, as it is not necessary to the decision.) And it held that Arizona could have 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…

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

…he LAT: Seemingly untouched by numerous legal defeats, the voter ID law serves as an example of how difficult it 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…

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

…ng locations for most of the city’s heavily white districts. “This is exactly the 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…

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“What if the Supreme Court Were Liberal?”

…would likely overrule Citizens United and say that it is returning to its earlier approach. Congressional power. 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….

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“Douglas and Mazo’s Election Law Stories”

…ories book. This title offers a rich and detailed account of the most significant cases in election law, including 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…

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

…ened if #SCOTUS Hadn’t Killed Voting Rights Act Provision?  My point was that Maricopa County’s decision to 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…

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“The Right to ‘Mobocracy’”

…cial ire for the Supreme Court, which in recent years has opposed his views in cases like Citizens United, which 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…

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

…g as it had offered before to get preclearance.  The court approved other changes to Florida election law, finding 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…

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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…

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“Alabama’s New Fight for Voting Rights”

…s week with worries of a resurgent era of voter 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,…

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

…Intent: Statutory Interpretation and the Constitutionality of Section 2 of the 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…

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“A New Proposal to Address Local Voting Discrimination”

…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-litigation by law firms and non-profits, and (3) bureaucratic enforcement by the U.S. Department of Justice — are woefully inadequate. There are…

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

…state and orders its own maps. That would take some time, but with the primary now potentially put off until June 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…

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Revised Version of Paper on Election Law at the Roberts Court

…down a strong conservative path. Citizens United v. Federal Election Commission freed corporate money in U.S. candidate 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…

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EAC’s Brian Newby Sued for Citizenship Form Decision

…Georgia Coalition for the Peoples’ Agenda. “We believe the requirement to provide proof of citizenship to register 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…

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

…n the grounds that such history is not probative in a challenge to a more recent legislative action,” the motion 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…

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“Arguments Over North Carolina Voter ID Law Begin in Federal Court”

…ght examine balloting laws 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…

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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

…he Guardian in which the architect of the lawsuits to bring down Section 5 of the Voting Rights Act appeared to express 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…

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Ed Blum’s Regret

…hought of this before he put together the team to decimate the Voting Rights Act. Andrew Gumbel in The Guardian: 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…

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My Academic Articles 2013-2014

…uke Journal of Constitutional Law & Public Policy, (2014) Race or Party? How Courts Should Think About Republican 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)…

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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…

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ELB Podcast Episode 8. Pam Karlan: Voting Rights In America, 2016

What is the state of voting rights in the United States as we 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…

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“Evenwel v. Abbott: Who Will Count in Our Democracy?”

…persons for purposes of drawing state legislative districts and eviscerate the principle of equal representation. 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…

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“Balance Sheet Voting Rights Act 50 years”

…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 McDonald Proposed Amendments to the Voting…

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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

…State Voter ID Laws, AComments Foley, Caitlin Page 585 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…

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Why I’m Optimistic About Evenwel, #SCOTUS One Person, One Vote Case

…n-Feingold law within a few years. Indeed, in a current draft which I’ll be presenting at a Stanford Law Review 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…

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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…

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“Attorney General Paxton Asks SCOTUS to Declare Redistricting Attorneys’ Fees Award Unconstitutional Under Shelby County v. Holder”

…law of the land.”   In 2011, Texas filed a lawsuit seeking federal preclearance of its redistricting maps under the unconstitutional preclearance framework. While the case was pending at the Supreme Court, the Court in Shelby County held that this preclearance framework imposed unconstitutional “federalism costs” on states like Texas. Shelby County therefore established that Texas’s redistricting plans were never subject to federal…

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“Civil Rights Legal Group Picks New President”

…eminders” of civil rights work remaining to be done 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…

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“Jeb Bush and Ben Carson Split on Voting Rights Act”

…reason reauthorization won’t come up is because President George W. Bush reauthorized it in 2006 for 25 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…

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What Did Jeb Bush Mean in His Comments About Not “Reauthorizing” the Voting Rights Act?

…t 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, which provides national voting rights…

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“Top Recent Downloads in Election Law on SSRN”

…Revised: 27 Aug 2015 7 47 Corporate Speech and the Rights of Others Thomas Wuil Joo University of California – 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…

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The Roberts Court at 10: Election Law

…down a strong conservative path. Citizens United v. Federal Election Commission freed corporate money in U.S. candidate 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…

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ELB Podcast, Episode 5. Nina Perales: Latino Voting Rights Struggles in Texas and Beyond

…cting litigation in San Antonio, raising questions about whether Texas discriminated against Latino voters and others? 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…

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Sen. Murkowski Co-Sponsors Dem Bill to Fix Voting Rights Act

…worked mostly with Democrats on the Voting Rights Amendment Act, which was seen by Democrats as a fairly watered 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…

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