“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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“How Jimmy Carter championed civil rights — and Ronald Reagan didn’t”

…, where they aggressively tried to weaken the civil rights laws of the 1960s. Now we live in the world Reagan created. The five conservative justices on the Supreme Court who gutted the Voting Rights Act in the 2013 decision Shelby County vs. Holder were all appointed by Reagan or served in his administration. Reagan’s ideological descendants, post-Shelby, have imposed strict voter-ID laws, cut early voting and eliminated same-day voter…

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“Texas Two-Steps All Over Voting Rights; It says it can make voting as difficult as it wants to, and any law that says otherwise is unconstitutional.”

…change by proving that the proposed change would not make it harder for minority voters to vote and to elect their preferred candidates. Don’t worry, Chief Justice John Roberts assured the American public in that 2013 case, Shelby County v. Holder. Although states with a history of racial discrimination would no longer be subject to federal “preclearance” of voting changes because preclearance offends the “equal sovereignty” of states such as…

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Chutzpah Dep’t: Court Rejects Shelby County Plaintiffs’ Request for $2 Million in Attorney’s Fees

…ght over $2 million in attorney’s fees. You can read the three opinions of the three judges on the Court here, but the result can be explained in one sentence from the majority opinion by Judge Griffith: “We find Shelby County not entitled because its lawsuit did not enforce compliance with the VRA and because Congress did not intend to use fees to encourage the invalidation of the Act’s provisions.” Judge Tatel concurring:…

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Two Law and Political Process Study Group Panels at APSA

…the passage of the Voting Rights Act, providing an opportunity for reflection on the past and thoughts about the Act’s future. Among the questions to be considered: What has been the effect of the Supreme Court’s decision in Shelby County to render the preclearance provisions of the Act ineffective? What is the likelihood of congressional reinstitution of the preclearance provision? Does Section 2 of the Act continue to function as intended?…

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“Texas Ordered to Pay $1M in Legal Fees in Voting Rights Case”

…f Appeals for the D.C. Circuit said. A three-page advisory filed by the state—contending that Texas became the winner in the redistricting case after the U.S. Supreme Court struck down a provision of the Voting Rights Act in Shelby County v. Holder—didn’t cut it, Judge Patricia Millett wrote. “Texas gets no second bite at the apple now,” Millett wrote. “What little argument Texas did advance in its ‘Advisory’ provides an insufficient basis for…

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“Election Law Federalism”

…provides the first comprehensive account of non-Voting Rights Act federal voting laws. Section 5 of the Voting Rights Act — long the most effective voting rights law in American history — was disabled by the Supreme Court in Shelby County v. Holder. Section 2 of the Voting Rights Act is in the crosshairs. As the Supreme Court becomes more hostile to race-based anti-discrimination laws like the Voting Rights Act, Congress will turn to…

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“Federal judge in New Hampshire: Ballot ‘selfies’ are free speech, don’t encourage voter fraud”

…make it illegal to use a photograph or image of a ballot for purposes of vote buying. The court also points to lack of evidence of a current problem with vote buying. I think both of these arguments are off the mark. As with Shelby County and voting rights, the very fact that a law is effective makes it very hard to prove a negative. And because vote buying is hard to detect, this law is narrowly tailored to preventing it. Nothing stops a person…

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2015 Supplement to The Law of Democracy

…There is no new material for this Chapter. 50 Chapter Five 51 Williams-Yulee v. The Florida Bar 59 Note: The Boundary Between Crime, Campaign Contributions, and Lobbying 73 Note: The New “Political Realism” 86 Chapter Six 90 Shelby County v. Holder 90 Chapter Seven 114 There is no new material for this Chapter. 114 Chapter Eight 115 There is no new material for this Chapter. 115 Chapter Nine 116 There is no new material for this Chapter. 116…

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GOP Statement on Voting Rights Act Celebrates Early Voting, While GOP Legislators Cut It Back

…of those who made it possible.” Yet in North Carolina, Ohio, Wisconsin (where Priebus is from) and elsewhere, Republican legislators have voted to cut back early voting, and to impose additional voting restrictions, such as more onerous voter identification laws. Nor is the GOP supporting efforts to amend the Voting Rights Act after the Supreme Court’s 2013 opinion in Shelby County v. Holder gutting a key part of it. Here is the full…

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“How to Save the Voting Rights Act”

…history of discrimination to get federal approval before changing their voting laws; and the ongoing “voting wars” that accelerated when Roberts led the court’s conservatives in striking down the 2006 preclearance renewal in Shelby County v. Holder. Berman’s book, like Jim Rutenberg’s excellent cover story for the New York Times Magazine on the 50th anniversary of the Voting Rights Act, views the struggles over voting rules primarily through the…

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“Election Law’s Path in the Roberts Court’s First Decade: A Sharp Right Turn But with Speed Bumps and Surprising Twists”

…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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“Voting Rights at 50”

…is more contested than it has been in generations. Yet, the story is more complex. The landscape of voter discrimination today bears little resemblance to the formalized Jim Crow barriers to the black franchise. Even before Shelby County, the Voting Rights Act struggled to keep up with the new voting challenges, which have evolved from exclusively Southern obstacles defined by race to nationwide electoral modifications with at best limited…

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“The Voting Rights Act at 50 and the Section on Election Law at Birth: A Perspective”

…mula of Section 4, which determined which states and local governments were subject to preclearance based on their histories of discrimination in voting, was unconstitutional. That rendered Section 5 obsolete. In the wake of Shelby County, voting rights scholars have scrambled to understand the Court’s opinion and to craft a response. Some scholars saw Shelby County as a deeply destabilizing decision that implicated longstanding federalism and…

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“Symposium: Ideology, partisanship, and the new ‘one person, one vote’ case”

…conservatives. After all, the brainchildbehind this new “one person, one vote” lawsuit, Ed Blum and his Project on Fair Representation, brought us the demise of a key provision of the Voting Rights Act in the Supreme Court’s Shelby County v. Holder case and continued attacks on affirmative action in the second coming of theFisher case. But the theory the Evenwel plaintiffs pursue is anything but conservative: it is about taking power away from…

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