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

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

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“The ‘Voting Rights’ Partisan Power Play”

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

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Top Recent Downloads in Election Law on SSRN

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

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

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the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand the voting rights questions of today.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

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Upcoming Speaking Engagements

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

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Quote of the Day, MLK Day Edition

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

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

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

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Initial Thoughts on the Proposed Amendments to the Voting Rights Act

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

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What the New Voting Rights Act Bill Means

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

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ELB Vacation Quick Hits

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

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Blog Downtime, Blogging Break, and Happy Holidays!

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

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

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

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

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

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

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

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

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

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Top Recent Downloads in Election Law on SSRN

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

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Election Law in the New Issue of Harvard Law Review

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

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

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

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

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

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

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

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“The Right to Vote”

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

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“Section Two Minus Section Five”

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

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North Carolina and Racial Redistricting

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

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

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

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“Shelby County and the End of History”

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

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“Voting Rights Struggles Face Legislative Hurdles”

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

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

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

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Election Law Journal 12:3 — Responses to Shelby County

…issue of Election Law Journal is now available.  It features ten short essays on the Supreme Court decision in Shelby County from members of our illustrious editorial board.  Here’s the full table of contents: The Party Line: Shelby County and Beyond, by Daniel P. Tokaji, Paul Gronke Articles Is It the Message or the Person? Lessons from a Field Experiment About Who Converts to Permanent Vote by Mail, by Keith Smith, Dari E. Sylvester Ger…

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Other Goings-On in Texas Since The Supreme Court Killed Voting Rights Act Section 5 Preclearance

In Pasadena, TX: “the City of Pasadena in southeast Harris County voted 5-4 to place a proposition on the November 2013 ballot that, if approved by voters, would change the city’s current 8 single member district system of electing members of the city council to a 6-2 system featuring two at large members. State Sen. Sylvia Garcia, MALDEF, and the Houston Chronicle have all expressed concerns that the move would dilute the voting strength…

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AALS 2014 Program and Call for Papers: The Right to Vote, from Reynolds to Shelby and Beyond

The subject of AALS Legislation & Law of the Political Process Section’s 2014 Annual Meeting program is ”The Right to Vote:  From Reynolds v. Sims to Shelby County, and Beyond.”  The program will take place on Friday, January 3, 2014, from 1:30 to 3:15 P.M. in New York.  The panel will include Professors Derek Muller, Rick Pildes, and Franita Tolson.  Two additional panelists will be chosen through a call for papers, to be…

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Law and Political Process Study Group Panel at APSA on Shelby County

I hope to see many of you in Chicago:     Law and Political Process Study Group Panel 1   The Future of the Voting Rights Act After the Shelby County Case Date: Thursday, Aug 29, 2013, 2:00 PM-3:45 PM   Location: Hilton 4A, 4th Floor Subject to change. Check the Final Program at the conference. Chair(s): Bruce E. Cain Stanford University Author(s): Regional Differences in Racial Polarization in the 2012 Pr…

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Rep. Sensenbrenner Issues Comment Regretting DOJ Suit on Voter ID

This, from the Republican Democrats have been counting on to try to push a legislative fix after the Shelby County decision: Congressman Sensenbrenner: “I regret that the Department of Justice announced its intent to file a lawsuit against Texas’ Voter ID law citing Section 2 to the Voting Rights Act.  The Texas legislature passed Voter ID, and Governor Perry signed this legislation into law in 2011.  Voter ID laws are an essential element…

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Will DOJ Seek Preliminary Injunctive Relief in Texas Voter ID Case? Will It Get It?

Remember this exchange from the oral argument in Shelby County? JUSTICE KENNEDY: Well, I — I do think the evidence is very clear that Section — that individual suits under Section 2 type litigation were just insufficient and that Section 5 was utterly necessary in 1965. No doubt about that. GENERAL VERRILLI: And I think it remains true – JUSTICE KENNEDY: But with — with a modern understanding of — of the dangers of pollin…

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A Few Quick Thoughts on DOJ’s Suit Against Texas on Voter ID and Moves on Redistricting

As I explained in this National Law Journal piece from a few weeks ago, AG Holder is trying whatever he can to make up for the loss of the preclearance provisions of Section 5. But thanks to the Supreme Court’s stingy interpretation of section 2 of the Voting Rights Act, a section 2 suit on voter id  will be tough to win. In this recent Slate piece on North Carolina’s tough voter law, I explain that the preclearance provision which t…

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Breaking: DOJ Sues Texas Over Voter ID using Section 2 of Voting Rights Act

Press release: Department of Justice Office of Public Affairs FOR IMMEDIATE RELEASE Thursday, August 22, 2013 Justice Department to File New Lawsuit Against State of Texas Over Voter I.D. Law The Department of Justice announced today that it will file a new lawsuit against the State of Texas, the Texas Secretary of State, and the Director of the Texas Department of Public Safety over the State’s strict voter photo identification law (SB 14…

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Pasquotank County, NC Appeal

In my recent Slate article, I wrote: Forty of North Carolina’s counties were covered by the preclearance requirement before Shelby County, and a draconian law like this would never have made it past the Justice Department. Nor would a whole bunch of local shenanigans deployed just last week in suppressing student and other voting. The Associated Press reported that “The Pasquotank County Board of Elections on Tuesday barred an Elizabeth City St…

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What Did VRA Preclearance Actually Do?: The Gap Between Perception and Reality Part II

By Rick Pildes & Dan Tokaji The primary goal in our earlier post was to bring greater policy and legal realism to discussions of Section 5 — both in terms of (1) historical perspective on what Section 5 actually did and (2) on what kind of voting policies are likely to be most effective going forward.  These conversations are essential for those, like us, concerned with preventing new barriers to access and with expanding access to mor…

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“Supreme Error: North Carolina’s new voter suppression law shows why the Voting Rights Act is still necessary.”

I have written this Jurisprudence essay for Slate.  It begins: Usually it takes years to judge when the Supreme Court gets something very wrong. Think of Justice Kennedy’s opinion for the court in the 2010 campaign-finance case, Citizens United, freeing corporations to spend money on elections. He wrote that the “appearance of [corporate] influence or access will not cause the electorate to lose faith in our democracy,” a point that remains ho…

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