Have a Comment?
Generously Supported By
ELB Feeds and Email Subscriptions
Books by Rick
The Voting Wars: From Florida 2000 to the Next Election Meltdown (Yale University Press, 2012)
The Voting Wars Website
NOW AVAILABLE from
Barnes and Noble
Election Law--Cases and Materials (5th edition 2012) (with Daniel Hays Lowenstein and Daniel P. Tokaji)
The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore (NYU Press 2003) NOW IN PAPER
Table of Contents
Order from Amazon.com
Order from BarnesandNoble.com
Journal of Legislation Symposium on book
The Glannon Guide to Torts: Learning Torts Through Multiple-Choice Questions and Analysis (Aspen Publishers 2d ed. 2011)
Remedies: Examples & Explanations (Aspen Publishers, 2d ed. 2010)
Election Law Resources
Blogroll/Political News Sites
All About Redistricting (Justin Levitt)
American Constitution Society
Ballot Access News
Brennan Center for Justice
The Brookings Institution's Campaign Finance Page
California Election Law (Randy Riddle)
Caltech-MIT/Voting Technology Project (and link to voting technology listserv)
The Caucus (NY Times)
Campaign Legal Center (Blog)
Campaign Finance Institute
Center for Competitive Politics (Blog)
Center for Governmental Studies
Doug Chapin (HHH program)
Equal Vote (Dan Tokaji)
Federal Election Commission
The Fix (WaPo)
Initiative and Referendum Institute
Legal Theory (Larry Solum)
Political Activity Law
Summary Judgments (Loyola Law faculty blog)
Talking Points Memo
UC Irvine Center for the Study of Democracy
UC Irvine School of Law
USC-Caltech Center for the Study of Law and Politics
The Volokh Conspiracy
Votelaw blog (Ed Still)
Washington Post Politics
Recent Newspapers and Magazine Commentaries
Big Money Lost, But Don't Be Relieved, CNN Opinion, Nov. 9, 2012
A Better Way to Vote: Nationalize Oversight and Control, NY Times, "Room for Debate" blog, Nov. 9, 2012
Election Day Dispatches Entry 5: Black Panthers, Navy Seals, and Mysterious Voting Machines, Slate, Nov. 6, 2012
Behind the Voting Wars, A Clash of Philosophies, Sacramento Bee, Nov. 4, 2012
How Many More Near-Election Disasters Before Congress Wakes Up?, The Daily Beast, Oct. 30, 2012
Will Bush v. Gore Save Barack Obama? If Obama Narrowly Wins Ohio, He Can Thank Scalia and the Court's Conservatives, Slate, Oct. 26, 2012
Will Voter Suppression and Dirty Tricks Swing the Election?, Salon, Oct. 22, 2012
Is the Supreme Court About to Swing Another Presidential Election? If the Court Cuts Early Voting in Ohio, It Could Be a Difference Maker in the Buckeye State, Slate, Oct. 15, 2012
Election Truthers: Will Republicans Accept an Obama Election Victory?, Slate, Oct. 9, 2012
Wrong Number: The Crucial Ohio Voting Battle You Haven't Heard About, Slate, Oct. 1, 2012
Litigating the Vote, National Law Journal, Aug. 27, 2012
Military Voters as Political Pawns, San Diego Union-Tribune, August 19, 2012
Tweeting the Next Election Meltdown: If the Next Presidential Election Goes into Overtime, Heaven Help Us. It’s Gonna Get Ugly, Slate, Aug. 14, 2012
A Detente Before the Election, New York Times, August 5, 2012
Worse Than Watergate: The New Campaign Finance Order Puts the Corruption of the 1970s to Shame, Slate, July 19, 2012
Has SCOTUS OK'd Campaign Dirty Tricks?, Politico, July 10, 2012
End the Voting Wars: Take our elections out of the hands of the partisan and the incompetent, Slate, June 13, 2012
Citizens: Speech, No Consequences, Politico, May 31, 2012
Is Campaign Disclosure Heading Back to the Supreme Court? Don’t expect to see Karl Rove’s Rolodex just yet, Slate, May 16, 2012
Unleash the Hounds Why Justice Souter should publish his secret dissent in Citizens United, Slate, May 16, 2012
Why Washington Can’t Be Fixed; And is about to get a lot worse, Slate, May 9, 2012
Let John Edwards Go! Edwards may be a liar and a philanderer, but his conviction will do more harm than good, Slate, April 23, 2012
The Real Loser of the Scott Walker Recall? The State of Wisconsin, The New Republic, April 13, 2012
A Court of Radicals: If the justices strike down Obamacare, it may have grave political implications for the court itself, Slate, March 30, 2012
Of Super PACs and Corruption, Politico, March 22, 2012
Texas Voter ID Law May Be Headed to the Supreme Court, Fort Worth Star-Telegram, Mar. 13, 2012
“The Numbers Don’t Lie: If you aren’t sure Citizens United gave rise to the Super PACs, just follow the money, Slate, Mar. 9, 2012
Stephen Colbert: Presidential Kingmaker?, Politico, Mar. 5 2012
Occupy the Super PACs; Justice Ginsburg knows the Citizens United decision was a mistake. Now she appears to be ready to speak truth to power, Slate, Feb. 20, 2012
Kill the Caucuses! Maine, Nevada, and Iowa were embarrassing. It’s time to make primaries the rule, Slate, Feb. 15, 2012
The Biggest Danger of Super PACs, CNN Politics, Jan. 9, 2012
This Case is a Trojan Horse, New York Times "Room for Debate" blog, Jan. 6, 2012 (forum on Bluman v. FEC)
Holder's Voting Rights Gamble: The Supreme Court's Voter ID Showdown, Slate, Dec. 30, 2011
Will Foreigners Decide the 2012 Election? The Extreme Unintended Consequences of Citizens United, The New Republic (online), Dec. 6, 2011
Disenfranchise No More, New York Times, Nov. 17, 2011
A Democracy Deficit at Americans Elect?, Politico, Nov. 9, 2011
Super-Soft Money: How Justice Kennedy paved the way for ‘SuperPACS’ and the return of soft money, Slate, Oct. 25, 2012
The Arizona Campaign Finance Law: The Surprisingly Good News in the Supreme Court’s New Decision, The New Republic (online), June 27, 2011
New York City as a Model?, New York Times Room for Debate, June 27, 2011
A Cover-Up, Not a Crime. Why the Case Against John Edwards May Be Hard to Prove, Slate, Jun. 3, 2011
Wisconsin Court Election Courts Disaster, Politico, Apr. 11, 2011
Rich Candidate Expected to Win Again, Slate, Mar. 25, 2011
Health Care and the Voting Rights Act, Politico, Feb. 4, 2011
The FEC is as Good as Dead, Slate, Jan. 25, 2011
Let Rahm Run!, Slate, Jan. 24, 2011
Lobbypalooza,The American Interest, Jan-Feb. 2011(with Ellen P. Aprill)
Election Hangover: The Real Legacy of Bush v. Gore, Slate, Dec. 3, 2010
Alaska's Big Spelling Test: How strong is Joe Miller's argument against the Leeza Markovsky vote?, Slate, Nov. 11, 2010
Kirk Offers Hope vs. Secret Donors, Politico, November 5, 2010
Evil Men in Black Robes: Slate's Judicial Election Campaign Ad Spooktackular!, Slate, October 26, 2010 (with Dahlia Lithwick)
Show Me the Donors: What's the point of disclosing campaign donations? Let's review, Slate, October 14, 2010
Un-American Influence: Could Foreign Spending on Elections Really Be Legal?, Slate, October 11, 2010
Toppled Castle: The real loser in the Tea Party wins is election reform, Slate, Sept. 16, 2010
Citizens United: What the Court Did--and Why, American Interest, July/August 2010
The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot", Slate, May 24, 2010
Crush Democracy But Save the Kittens: Justice Alito's Double Standard for the First Amendment, Slate, Apr. 30, 2010
Some Skepticism About the "Separable Preferences" Approach to the Single Subject Rule: A Comment on Cooter & Gilbert, Columbia Law Review Sidebar, Apr. 19, 2010
Scalia's Retirement Party: Looking ahead to a conservative vacancy can help the Democrats at the polls, Slate, Apr. 12, 2010
Hushed Money: Could Karl Rove's New 527 Avoid Campaign-Finance Disclosure Requirements?, Slate, Apr. 6, 2010
Money Grubbers: The Supreme Court Kills Campaign Finance Reform, Slate, Jan. 21, 2010
Bad News for Judicial Elections, N.Y. Times "Room for Debate" Blog, Jan., 21, 2010
Read more opeds from 2006-2009
Forthcoming Publications, Recent Articles, and Working Papers
The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, George Washington Law Review (forthcoming 2013) (draft available)
A Constitutional Right to Lie in Campaigns and Elections?, Montana Law Review (forthcoming 2013) (draft available)
End of the Dialogue? Political Polarization, the Supreme Court, and Congress, 86 Southern California Law Review (forthcoming 2013) (draft available)
Fixing Washington, 126 Harvard Law Review (forthcoming 2012) (draf available)
What to Expect When You’re Electing: Federal Courts and the Political Thicket in 2012, Federal Lawyer, (forthcoming 2012)( draft available)
Chill Out: A Qualified Defense of Campaign Finance Disclosure Laws in the Internet Age, Journal of Law and Politics (forthcoming 2012) (draft available)
Lobbying, Rent Seeking, and the Constitution, 64 Stanford Law Review (forthcoming 2012) (draft available)
Anticipatory Overrulings, Invitations, Time Bombs, and Inadvertence: How Supreme Court Justices Move the Law, Emory Law Journal (forthcoming 2012) (draft available)
Teaching Bush v. Gore as History, St. Louis University Law Review (forthcoming 2012) (symposium on teaching election law) (draft available)
The Supreme Court’s Shrinking Election Law Docket: A Legacy of Bush v. Gore or Fear of the Roberts Court?, Election Law Journal (forthcoming 2011) (draft available)
Citizens United and the Orphaned Antidistortion Rationale, 27 Georgia State Law Review 989 (2011) (symposium on Citizens United)
The Nine Lives of Buckley v. Valeo, in First Amendment Stories, Richard Garnett and Andrew Koppelman, eds., Foundation 2011)
The Transformation of the Campaign Financing Regime for U.S. Presidential Elections, in The Funding of Political Parties (Keith Ewing, Jacob Rowbottom, and Joo-Cheong Tham, eds., Routledge 2011)
Judges as Political Regulators: Evidence and Options for Institutional Change, in Race, Reform and Regulation of the Electoral Process, (Gerken, Charles, and Kang eds., Cambridge 2011)
Citizens United and the Illusion of Coherence, 109 Michigan Law Review 581 (2011)
Aggressive Enforcement of the Single Subject Rule, 9 Election Law Journal 399 (2010) (co-authored with John G. Matsusaka)
The Benefits of the Democracy Canon and the Virtues of Simplicity: A Reply to Professor Elmendorf, 95 Cornell Law Review 1173 (2010)
Constitutional Avoidance and Anti-Avoidance on the Roberts Court, 2009 Supreme Court Review 181 (2010)
Election Administration Reform and the New Institutionalism, California Law Review 1075 (2010) (reviewing Gerken, The Democracy Index)
You Don't Have to Be a Structuralist to Hate the Supreme Court's Dignitary Harm Election Law Cases, 64 University of Miami Law Review 465 (2010)
The Democracy Canon, 62 Stanford Law Review 69 (2009)
Review Essay: Assessing California's Hybrid Democracy, 97 California Law Review 1501 (2009)
Bush v. Gore and the Lawlessness Principle: A Comment on Professor Amar, 61 Florida Law Review 979 (2009)
Introduction: Developments in Election Law, 42 Loyola of Los Angeles Law Review 565 (2009)
Book Review (reviewing Christopher P. Manfredi and Mark Rush, Judging Democracy (2008)), 124 Political Science Quarterly 213 (2009).
"Regulation of Campaign Finance," in Vikram Amar and Mark Tushnet, Global Perspectives on Constitutional Law (Oxford University Press (2009)
More Supply, More Demand: The Changing Nature of Campaign Financing for Presidential Primary Candidates (working paper, Sept. 2008)
When 'Legislature' May Mean More than''Legislature': Initiated Electoral College Reform and the Ghost of Bush v. Gore, 35 Hastings Constitutional Law Quarterly 599 (2008) (draft available)
"Too Plain for Argument?" The Uncertain Congressional Power to Require Parties to Choose Presidential Nominees Through Direct and Equal Primaries, 102 Northwestern University Law Review 2009 (2008)
Political Equality, the Internet, and Campaign Finance Regulation, The Forum, Vol. 6, Issue 1, Art. 7 (2008)
Justice Souter: Campaign Finance Law's Emerging Egalitarian, 1 Albany Government Law Review 169 (2008)
Beyond Incoherence: The Roberts Court's Deregulatory Turn in FEC v. Wisconsin Right to Life, 92 Minnesota Law Review 1064 (2008) (draft available)
The Untimely Death of Bush v. Gore, 60 Stanford Law Review 1 (2007)
Search Results for: shelby
We were both in the courtroom yesterday for the oral argument in the Shelby County, Alabama, voting rights case, and were particularly struck by one aspect of the arguments: the strange persistence of the myth that Section 2 of the Voting Rights Act is an adequate substitute for Section 5. The working theory seems to be that if Section 5 is declared unconstitutional or the coverage formula in Section 4 is struck down, there’s always Section 2 of the Act. We call that a theory because there is no basis in reality for believing it.
Solicitor General Don Verrilli told the Justices that Section 2 cases are not an adequate substitute for Section 5, emphasizing that the voter has to bear the burden of proof and other heavy burdens, including cost. Attorney Debo Adegbile followed that up with the point that Sections 2 and 5 work in tandem, with Section 5 often needed to insure that gains won in Section 2 cases are protected.
From our own perspective as two lawyers with more than a hundred Section 2 cases in our combined nearly 90 years of practice (forty years plus each), we have some points we think are important to consider as the Justices decide this case. We would also note the importance of Supreme Court cases like United States v. Raines.
One of the best reporters covering how Shelby County is playing in covered jurisdictions is Gannett’s Mary Orndorff Troyan. Gannett stories often don’t come up in my news searches for some reason, so here’s some catchup on three recent stories:
Yesterday I posted roundups of news stories and commentaries from yesterday’s voting rights oral argument at the Supreme Court in posts here, here, and here. I had two substantive posts on the oral argument, one predicting the outcome and the other discussing Justice Scalia’s stance on whether states need protection in Congress when it comes to voting rights. Rick Pildes posted on the blog about whether Congress abdicated its responsibility in the 2006 renewal.
TPM desperately searches for a silver lining in Justice Kennedy’s comments.
Emily Bazelon wrote a Slate Supreme Court Dispatch.
Spencer Overton blogged at HuffPo.
Joey Fishkin blogged at Balkinization.
Benjamin Jealous wrote at The Root.
Alliance for Justice had a symposium with Gilda Daniels, Franita Tolson, William Yeomans and Bertrall Ross.
DEMOs issued this statement.
MORE to come.
I was struck by this statement from Justice Scalia today at the oral argument in the Shelby County case:
The problem here, however, is suggested by the comment I made earlier, that the initial enactment of this legislation in a — in a time when the need for it was so much more abundantly clear was — in the Senate, there — it was double-digits against it. And that was only a 5-year term.
Then, it is reenacted 5 years later, again for a 5-year term. Double-digits against it in the Senate. Then it was reenacted for 7 years. Single digits against it. Then enacted for 25 years, 8 Senate votes against it. And this last enactment, not a single vote in the Senate against it. And the House is pretty much the same. Now, I don’t think that’s attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It’s been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
I don’t think there is anything to be gained by any Senator to vote against continuation of this act. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution. You have to show, when you are treating different States differently, that there’s a good reason for it.
That’s the — that’s the concern that those of us who — who have some questions about this statute have. It’s — it’s a concern that this is not the kind of a question you can leave to Congress. There are certain districts in the House that are black districts by law just about now. And even the Virginia Senators, they have no interest in voting against this. The State government is not their government, and they are going to lose — they are going to lose votes if they do not reenact the Voting Rights Act.
Even the name of it is wonderful: TheVoting Rights Act. Who is going to vote against that in the future?
I’m going to put aside Justice Scalia’s provocative comment about racial entitlements, which is getting a lot of attention. Rather, I want to focus on his idea that judicial involvement is necessary here because normal political processes are not working. This is a very familiar argument for judicial review (often associated with footnote 4 of Carolene Products, and with the work of John Hart Ely), that sometimes the political process is stuck and courts need to intervene to protect “discrete and insular minorities.” The Court needed to get involved in redistricting, and impose the one person, one vote rule, for example, because gerrymandered legislatures would not fix the reapportionment problem themselves.
It is one thing to talk about whether a particular group (say gay Americans, to take an example currently also before the court) need extra protection from the courts, necessitating a more searching standard of review. But it is hard to claim that states need extra protection. States can spend massive resources lobbying in Congress, and should have an exceptionally receptive ear from the state’s Senators and congressional delegation. If state leaders in covered jurisdictions tried to do this in 2006, I was unaware of it.
It may be true that in 2006 state leaders made a calculation that going against the VRA would be a losing political issue, but that’s not the same thing as saying that states were powerless to get protection through the normal political processes. State leaders in covered jurisdictions made a choice—and likely not the same choice they’d make today. (There’s been a sea change in attitudes toward section 5, driven in large part on having a Democratic DOJ in place during the last round of redistricting and at the height of the voting wars).
Is Justice Scalia claiming that states are powerless in other arenas? Or is he saying that the fear of being labeled racist stops the political process in its tracks, and prevents states from protecting themselves. Either way it seems a pretty flimsy argument to support extra judicial protection for some of the most powerful actors in the political scene.
UPDATE: Max Bauer points out an interesting contrast with Justice Scalia’s position in yesterday’s privacy decision. “It’s ironic that Scalia, a day after joining an opinion saying there was no need to review one law that was politically-difficult for anyone in Congress to vote against, now takes the opposite approach today.”
On Monday March 4, I’ll be on a panel about the Shelby County voting rights case at a symposium on voting rights at UC Berkeley.
On Tuesday, March 5, at noon, I’ll be speaking on “The Voting Wars Revisited” for the UC Davis Law chapter of the American Constitution society.
And on Saturday, March 23, I’ll be the keynote speaker at a University of Virginia symposium put on by the Journal of Law and Politics, “The Voting Wars: Elections and the Law from Registration to Inauguration.” Details on this event (and the great lineup of speakers) to come.
Ari Berman at the Nation: “It quickly became clear inside the courtroom that there are four votes to uphold Section 5 and four votes to strike it down. Justice Kennedy, as is so often the case, appears to be the swing vote, although he certainly leaned toward the conservatives.”
Bob Barnes for WaPo: “The Supreme Court’s conservative justices strongly suggested Wednesday that a key portion of the Voting Rights Act is no longer justified and the time had come for Southern states to be freed from special federal oversight.”
David Savage for LA Times: “Justice Anthony M. Kennedy, whose vote may be decisive, said the states deserved to be treated equally and that Congress did not have reason to continue a law that puts the South under a special scrutiny.”
Richard Wolf for USA Today: “It’s easy to go broke guessing on the outcome of any Supreme Court argument,” said Edward Blum, director of the Project on Fair Representation, which solicited the challenge to the law. But he said the questions from Roberts and others “highlighted the justices’ skepticism about the differences in discrimination between the covered and non-covered jurisdictions. Those differences simply don’t exist any longer.”
Lyle Denniston for SCOTUSBlog: If Kennedy believes that there is no way to justify any longer that kind of oversight of nine states that have to do the most to obey the 1965 law, that law may well be doomed. But it also was Kennedy who left the impression that he might be willing to go along with a potential way to short-circuit the case of Shelby County v. Holder, and allow the law to survive for some time more.
Andrew Cohen for The Atlantic: It never shocks me when Denniston is correct. I certainly wouldn’t bet against him. But my sense is that there will be no last-minute vote switch this time. There will be no ideological compromise. The Court won’t exercise judicial restraint in the face of clear legislative intent. In other words, it doesn’t matter that the Senate renewed the law by a vote of 98-0 in 2006. It doesn’t matter that the House of Representatives passed it by an enormous margin as well or that President George W. Bush held a signing ceremony. This Court clearly has had it in for this law for years now, and will, within the next four months, gut its most effective provision.
Yes, it is true that most of us (including me) predicted the Supreme Court would strike down section 5 of the Voting Rights Act back in 2009 in the NAMUDNO case. In that case, however, the Court punted, with a serious warning to Congress (not heeded to fix the Act). And we all remember Jeffrey Toobin running to CNN after the oral argument in the health care case to predict it would fall. It didn’t, as Chief Justice Roberts blinked. But I’ve read the transcript from today’s oral argument and I have no hope that the Voting Rights Act will continue in its current form after the Supreme Court is done with it in the Shelby County case.
So why will things be different this time?
First, there’s the issue of respect for the Supreme Court. In the conservative Justices’ minds, there seems no doubt that the Court is miffed that Congress didn’t fix the Act’s (in their view) outdated coverage formula after NAMUDNO. Justice Kennedy seems to think the reason Congress didn’t update in the first place is that they didn’t want to take the time or were too lazy. That’s not it at all—it is that it is hard to come up with a politically acceptable new coverage formula which would pass in the current Congress. (Justice Scalia for his part believes that simply overturning the VRA would be a radioactive move for politicians, something I believe is no longer true—witness Rick Perry dissing the Voting Rights Act section 5 during a Republican presidential debate and getting nary a mention.) Congress had four years to react to NAMUDNO and did nothing.
Second, the real action here in this case is with Chief Justice Roberts or Justice Kennedy. (Alito and Scalia expressed clear hostility to the law, and Thomas already in NAMUDNO said it was unconstitutional.) The thought that the Chief Justice would blink (or be a “statesman”) not once (in NAMUDNO), not twice (in the health care case), but thrice in four years seems unbelievable. And this is Roberts’ signature issue. Remember, he’s the Justice who said that it is “a sordid business” to divvy people up by race, and that “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” Since he was in the Reagan administration he’s supported a weakened Voting Rights Act. And now he’s given Congress time to fix the problem and they haven’t.
And that leaves Justice Kennedy. Liberals always pin their hopes on him, but they are usually disappointed (outside the context of social issues such as (sometimes) abortion and gay rights). But he’s been very hostile to the VRA and very strong on federalism and the sovereignty and dignity of states. One might say that is a signature issue for him. Reading his questions at oral argument, he is clearly troubled by the Act, and believes it is outdated (claiming that the Marshall Plan was great for then, but this is now). Justice Kennedy seems to believe, wrongly in my view, that section 2 and the use of preliminary injunctions, could do the same work as section 5. In a future post I’ll explain why this is wrong (the burden of proof is different, the substantive standard is different, and the threat of section 2 litigation is not the same bargaining chip as Section 5 is).
The one area of hope which some observers see from Justice Kennedy in today’s oral argument is the suggestion that even if the Act is not constitutional as to some covered jurisdictions, Alabama would be covered under any provision of the Act. I think people are overreading this exchange. Justice Kennedy did not seem convinced—it seems more likely he would buy Justice Scalia’s point that if Congress wants to cover Alabama, let it pass a statute covering Alabama and then justify it.
Let me be clear. If Justice Kennedy or the Chief want to use this as a way to get around a finding of unconstitutionality they clearly could. After all, the Justices in NAMUDNO all (aside from Thomas) engaged in a disingenuous act of statutory interpretation to avoid striking down the Act last time. But this time what is different is that I don’t see Kennedy or the Chief having any appetite to do so.
So sorry for the inconvenience. ELB’s servers were just overwhelmed with requests to visit the site following today’s oral argument in the Shelby County. We’ll be moving to a better server soon. And I’ve created electionlaw2.blogspot.com if the site goes down again until we transition.
Thanks for your patience.
[Apologies if you have trouble getting through. A link from HuffPo seems to have temporarily overwhelmed the servers.]
Adam Liptak NYT: A central provision of the Voting Rights Act of 1965 may be in peril, judging from tough questioning on Wednesday from the Supreme Court’s more conservative members. Justice Antonin Scalia called the provision, which requires nine states, mostly in the South, to get federal permission before changing voting procedures, a “perpetuation of racial entitlement.” Chief Justice John G. Roberts Jr. asked a skeptical question about whether people in the South are more racist than those in the North. Justice Anthony M. Kennedy asked how much longer Alabama must live “under the trusteeship of the United States government.”
Ryan Reilly HuffPo: Justice Antonin Scalia suggested that the continuation of Section 5 of the Voting Rights Act represented the “perpetuation of racial entitlement,” saying that lawmakers had only voted to renew the act in 2006 because there wasn’t anything to be gained politically from voting against it. “Even the name of it is wonderful, the Voting Rights Act. Who’s going to vote against that?” Scalia wondered during oral argument in Shelby County v. Holder. He said that the Voting Rights Act had effectively created “black districts by law.”
Sahil Kapur TPM: Oral arguments showed a sharp divide along ideological lines and suggested that the conservative majority is strongly inclined to overturn Section 5 of the half-century-old law.
As Adam Liptak reminded us last night “Many predicted that the court would strike down Section 5 in 2009, and they were wrong. Observers who make the same prediction today may suffer the same fate. But evidence suggests that the court’s five more conservative members may be prepared to take on at least one aspect of the law.They could stop short of striking down Section 5 itself. But if they say only that the current coverage formula must end, sending the question back to Congress, that would almost certainly have the practical effect in the current climate of legislative gridlock of striking down the section altogether.”
Yup. They can hide behind the fig leaf of just striking down the coverage formula, as I suggested they’d do in this Reuters piece. But the practical effect is to end section 5.
I am not able to attend oral arguments today in Shelby County, and thanks to the Supreme Court’s indefensible rules, there is no live streaming audio or video of the argument. A transcript will be released later today, which I will read, link to, and comment upon. Audio will be released on Friday afternoon. I will also link to news reports from oral argument, as they become available, likely beginning an hour or so from now.
Who Controls Voting Rights? (Reuters)
And for those who wish to go back in time: My first writing on the issues being argued today was in 2005, in writing edited by Chris Geidner: Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act after Tennessee v. Lane. My 2006 testimony before the Senate Judiciary Committee on the serious constitutional questions with renewing the act without making any changes is here. My article analyzing what was likely to happen after the Supreme Court raised constitutional questions in the NAMDNO case appeared in the 2010 Supreme Court Review (contrasting NAMUDNO with Citizens United) in Constitutional Avoidance and Anti-Avoidance by the Roberts Court.
Whatever else one can say if the Supreme Court strikes section 5, one cannot say it was unexpected.
“Picture the law as a pair of sweatpants.”
–Justin Levitt, on the upcoming oral argument in the Shelby County VRA case.
If Section 5 really is no longer needed, that’s a judgment for Congress to make. The states covered by Section 5 are hardly powerless, and there’s no reason now for the Supreme Court to substitute its judgment for that of Congress. The court need not protect states that did not take steps to protect themselves.
More to the point, the law is scheduled to end, or sunset, in 18 years. At that point, as in 2006, opponents of Section 5 will have congressional inertia on their side.
If, as we all hope, Section 5 is no longer needed, it can then die of natural causes. But it should not be subject to preliminary execution by the Supreme Court.
Here are all the commentaries in the series:
Richard Hasen says that if the Supreme Court kills Section 5, which insures that states or jurisdictions with a history of voting discrimination need federal approval for any changes in election law, the big question will be: What comes next? Reuters has invited leading academics who focus on voting rights and election law to participate in a forum on this important issue Commentary
In advance of tomorrow’s argument at the Supreme Court in Shelby County, I thought it worth relinking to my recent Slate piece.
NPR also offers Alabama Divided As Court Prepares To Hear Voting Rights Challenge.
“Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 the Voting Rights Act”
Nate Persily, Charles Stewart III, and Steve Ansolabehere have written an important new paper [updated], which I have now posted. The paper comes just in time for argument in the Shelby County case. Here is the introduction (minus the footnotes):
Three years ago, when the Supreme Court last considered the constitutionality of the coverage formula of Section 5 of the Voting Rights Act, we submitted an amicus brief on behalf of neither party analyzing the relevance to the case of voting patterns in the 2008 election.1 In particular, the brief and a subsequent Harvard Law Review article that expanded upon it,2 highlighted relative rates of racially polarized voting in the covered and noncovered jurisdictions to demonstrate where racial polarization had increased over time. Although some states had improved and others worsened in the gap in candidate preferences between racial groups, the brief and article concluded that, contrary to much conventional wisdom, racial polarization had actually increased in the 2008 election, especially in the areas covered by section 5 of the VRA.
We find ourselves in much the same position now as we did three years ago. We also find ourselves coming to the same conclusions, which have become, if anything, more strongly supported by recent data. Voting in the covered jurisdictions has become even more polarized over the last four years, as the gap between whites and racial minorities has continued to grow. This is due both to a decline among whites and an increase among minorities in supporting President Obama’s reelection. This gap is not the result of mere partisanship, for even when controlling for partisan identification, race is a statistically significant predictor of vote choice, especially in the covered states.
Moreso now than four years ago, both sides in the VRA debate look to the 2012 election to support their case. Critics of the VRA point to the reelection of the nation’s first African American president, amidst record rates of minority voter turnout, as evidence of how “times have changed” since 1965. The “strong medicine” of the VRA is no longer needed in the South,3 they argue, because the historic barriers to minority participation and office holding have largely vanished. For supporters of the VRA, the history since 1965 and the 1982 reauthorization demonstrate the continuing danger to minority voting rights in the covered jurisdictions. They point also to this past election as confirming Congress’s suspicions in the reauthorization process as new obstacles to voting, such as photo identification laws and restrictions on early voting, were more prevalent in the covered states. In the run up to the 2012 election, section 5 proved it had bite, as photo ID and other laws were prevented from going into effect by the DOJ or the District Court in Texas, South Carolina, and Florida, and Texas’s congressional redistricting plan was found to be intentionally discriminatory.
These contrasting views of the relevance of the 2012 election may very well provide the media frame for the debate over section 5 in the current challenge to the VRA in Shelby County v. Holder. Of course, the contending narratives of – “look how far we’ve come” versus “see how much voting discrimination persists” – are usually not the stuff of constitutional arguments. Moreover, the results of a highly salient and well-funded presidential election may seem beside the point for the constitutionality of a law that has its greatest effect in the context of local, below-the-radar, election law changes.
All involved in the debate over the VRA must admit, however, that we do not know exactly what the world will look like if section 5 is struck down. Of course, the South would not revert back to Jim Crow days: politics has evolved beyond the days of threatened lynchings for the exercise of the franchise. But the many examples in the legislative record of voting rights violations prevented by the VRA hint at what might happen if the covered jurisdictions were otherwise unconstrained. Even if Jim Crow will not return, the familiar regional pattern of discrimination might, as new stratagems replace old ones with minority voters becoming collateral damage in increasingly vicious partisan fights.
The litigants in the Shelby County case disagree over the applicable constitutional test and the necessary evidentiary showing for upholding the VRA. In particular, the challengers assert that Congress needed to distinguish the covered from the noncovered jurisdictions, in order to demonstrate that the coverage formula captures the areas of the country (and only those areas) that pose the greatest threat to minority voting rights. From their perspective, the coverage formula can only be “congruent and proportional”4 (and therefore constitutional) if it is precisely tailored to capture only “guilty” jurisdictions and no “innocent” ones.
Although defenders of the VRA point to higher rates of successful section 2 VRA cases as one example of where the covered states have distinguished themselves as voting rights iolators, they also maintain that Congress need only justify continued coverage by finding persistent dangers to voting rights in covered areas alone. The coverage formula, from its inception, has always been over and underinclusive of the jurisdictions of concern. Overinclusivity is addressed by the bailout provision, which allows “good” jurisdictions to escape coverage when they can demonstrate a clean voting rights record. So long as the coverage-formula-plus-bailout regime represents a rational attempt to address the problem of minority voting rights violations, defenders argue, the law is constitutional.
The challengers’ argument against the coverage formula would put Congress in an awkward position whenever justifying a geographically specific civil rights law. If the covered jurisdictions remain completely unchanged in their disrespect for minority voting rights, then the VRA is not working as promised. On the other hand, successful deterrence of voting rights violations in the covered states becomes evidence of its unconstitutionality if those jurisdictions become less distinct. In the oral argument in NAMUDNO, Chief Justice John Roberts described this problem as “the Elephant Whistle problem.” To summarize the allegory: A guy with a whistle around his neck walks into a bar. Another guy asks him, “why are you wearing a whistle around your neck?” “It’s to keep away elephants,” the first responds. “How do you know it’s working?” the second asks. “Do you see any elephants around here?”
If the Court takes the elephant whistle problem seriously, the challenge for defenders of the VRA is to find a metric that can hint at the danger of the VRA’s removal while simultaneously not suggesting it either has been ineffective or has outlived its usefulness. To some extent, the number of preclearance denials and DOJ requests for more information can do this by pointing at the types of laws that would have gone into effect but for the existence of the VRA. But even those data are incomplete because they cannot pick up the VRA’s deterrent effect – that is, the laws that were never proposed or passed because politicians knew they would not be allowed to go into effect. We should expect the number of laws denied preclearance to be small as compared to the number of laws that are never passed because of the VRA’s deterrent effect.
Janai Nelson has written this contribution for the Reuters symposium on Shelby County: “Section 5, however, has changed the discourse around race in backrooms and in courtrooms by requiring that electoral decision-makers are not only aware of race but also are conscious of the racial impact of their actions and avoid racial harm. Indeed, Section 5’s anti-retrogression standard directs jurisdictions subject to oversight either to advance or, at minimum, protect minority voting rights. This framework also informs the voting rights discourse beyond Section 5 — suggesting that the only right direction to move on racial equality in elections is forward.”
Joan Biskupic for Reuters
Mark Sherman for AP (on bailout)
Bob Barnes for WaPo
NYT Room for Debate (multiple contributors)
Extensive Shelby County preview from Andrew Cohen.
Guy Charles and Luis Fuentes-Rohwer have written this piece for the Reuters symposium on Shelby County. A snippet: “the Voting Rights Act must be amended in two ways. First, the statute would prohibit any voting qualification, proposed or applied by any state or political subdivision, that might have a substantial impact on a citizen’s ability to vote in federal elections. Second, Congress should create a nonpartisan federal agency — a Voting Rights Office similar to the Congressional Budget Office. Just as the CBO gives Congress independent analysis on budget issues, a VRO would provide independent analysis on any proposed voting qualification or procedure that might have a substantial impact on citizens’ ability to vote in federal elections.”
Her provocative piece ends: “Back to the puzzle I began with: how can it be that the Voting Rights Act is in such peril? The trouble isn’t really that I don’t know the answer. It’s that I’m afraid I do.”
Oral argument at the Supreme Court is February 27 with an opinion expected by the end of the Court’s term in June.
And check out the symposium I’ve organized over at Reuters Opinion on What Happens if Section 5 of the Voting Rights Act Falls.
Since 2009, I have been compiling a comprehensive list of voting rights incidents. (I have also served as an expert witness in such voting rights cases as those challenging the 2011 Texas redistricting laws.) The list now has 4,141 incidents: legal cases brought under Section 2 of the Voting Rights Act; legal cases brought under Section 5 of the act; objections by the Justice Department under Section 5 and “more information requests” issued by the department as part of the Section 5 process, if they resulted in pro-minority changes in election laws; and 14th Amendment cases.
Unpublished, as well as published, cases are included in the statistics below only if they resulted in changes in the election laws that helped minorities. Some are recorded in printed opinions, but many resulted in informal or court-approved settlements. In other instances, merely filing a lawsuit led to the changes in election laws that minority plaintiffs sought. This is a far larger number of incidents than in any database referred to in the Shelby County briefs.
What do these numbers reveal about the central issue that the Supreme Court asked the parties in Shelby County to address: the adequacy of the Section 5 coverage scheme. Section 5 mandates that certain states, counties or townships are barred from changing election laws without the approval of the Justice Department or the District Court of the District of Columbia.
First, 90 percent of the 4,141 incidents and 93.4 percent of the 3,775 “successful” incidents – those that resulted in changes to election law that advanced minorities’ voting rights – took place in the jurisdictions covered by Section 5. This may not be surprising, since 2,368 of the incidents were Section 5 objections or enforcement actions, or “more information” requests. These, by definition, can take place only in covered jurisdictions.
More instructive is the portion of the 1,256 successful Section 2 cases that arose in jurisdictions subject to oversight: 83.3 percent. Section 2 cases can be filed anywhere in the country. The number of successful Section 2 cases is far larger than that in the much-cited database compiled by Ellen Katz, a law professor at of the University of Michigan (which is subsumed in my list), and the proportion from covered jurisdictions is considerably higher than Katz found in published cases. This is because I included many unpublished cases that resulted in settlements, either in-court or out-of-court.
And don’t miss the important graphic.
To Frank “Butch” Ellis, the racist culture that defined Alabama 50 years ago is gone. Integrated neighborhoods are common, and blacks are winning local elections with white support, he says.
“It’s not an issue anymore with us here,” the white lawyer said from his office across the street from the Shelby County courthouse in Columbiana.
To Harry Jones, a black minister, the racism has just moved underground. “Shelby County has modernized the ‘good ole boy’ syndrome,” he said at his church in Calera, 10 miles away.
Those divergent views of Alabama and the American South are at the core of a U.S. Supreme Court fight over the 1965 Voting Rights Act, the landmark law that did more than any civil rights-era measure to empower blacks at the ballot box. Which perspective the court adopts will determine the fate of a central prong of the law being challenged by Shelby County. The court hears arguments Feb. 27 and will probably rule by late June.
The following invitation arrived via email:
Shelby County, Alabama v. Holder
The (Un)Constitutionality of Section 5 of the Voting Rights Act
The Honorable John Neiman
Solicitor General, State of Alabama
Partner, Jones Day
President and General Counsel, Center for Equal Opportunity
Director, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
Hans von Spakovsky
Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
On February 27, the Supreme Court will hear arguments on the constitutionality of Section 5 of the Voting Rights Act (VRA). While appropriate as a temporary, “emergency” measure in 1965, Section 5 is now outdated and imposes onerous requirements on an arbitrary group of states and counties. In order for these jurisdictions to make any change to their voting rules, Section 5 requires that they submit the proposed changes to the federal government and receive pre-clearance before implementing them. Not only is Section 5 an intrusion into state sovereignty, it also challenges the tradition of treating states equally. Join our panel of experts as they discuss these issues as well as examine the arguments the parties may make when they appear before the Court.
Friday, Feb. 22, 2:00 to 3:15 p.m.
The Heritage Foundation’s Lehrman Auditorium
RSVP online at RSVP online | or call (202) 675-1761
Terms and conditions of attendance are posted at heritage.org/Events/terms.cfm
214 Massachusetts Avenue, NE | Washington, DC 20002 | (202) 546-4400
Franita Tolson contributes to the Reuters symposium on what should happen after Shelby County: “If the Supreme Court strikes down Section 5 of the Voting Rights Act in Shelby County v. Holder, the focus will turn to Congress and the question of what legislation it should enact in place of Section 5. An equally compelling question is what will happen to the scope of congressional authority over elections.”
“Voting Rights 2.0: Why we still need the Voting Rights Act, and how the Supreme Court could make it work better instead of striking it down.”
Extensive and nuanced Emily Bazelon piece for Slate.
Hashim Mooppan and Mike Pitts have written posts for SCOTUSBlog’s new series on the Shelby County case. Mike Pitts’ work in this area is always excellent. But readers of this blog may not be familiar with Hashim. I’ve been corresponding with him for years about election law issues. And while we rarely agree, I find him to be very smart and careful. You should read his post.
SCOTUSBlog symposium on Shelby County is coming.
Mike Pitts has written this contribution to the Reuters voting rights symposium on the Shelby County case. A snippet: “In contrast, on the local level, there could be widespread retrogression. This could come from redistricting plans that eliminate ‘safe’ districts, switches to at-large elections or annexations of white population by cities and towns that would reduce minority voters’ influence. The key reason these changes are likely is that if you look at the Justice Department’s pre-clearance enforcement over the past 30 years, what stands out is that a disproportionate number of pre-clearance denials involved vote dilution on the local level. If local jurisdictions are most likely to violate Section 5 now, they are far more likely to be emboldened when it’s killed.”
The piece includes quotes from Rep. Sensenbrenner, and also this tidbit:
Many of the states and donors who have supported discriminatory voting laws are also backing Blum. His Project on Fair Representation is exclusively funded by Donors Trust, a consortium of conservative funders that might be the most influential organization you’ve never heard of. Donors Trust doled out $22 million to a Who’s Who of influential conservative groups in 2010, including the American Legislative Exchange Council (ALEC), which drafted mock voter ID laws and a raft of controversial state-based legislation; the Americans for Prosperity Foundation, the Koch brothers’ main public policy arm; as well as Grover Norquist’s Americans for Tax Reform Foundation. Donors Trust has received seven-figure donations from virtually every top conservative donor, including $5.2 million since 2005 from Charles Koch’s Knowledge and Progress Fund. (The structure of Donors Trust allows wealthy conservative donors like Koch to disguise much of their giving.)
From 2006 to 2011, Blum received $1.2 million from Donors Trust, which allowed him to retain the services of Wiley Rein, the firm that unsuccessfully defended Ohio’s and Florida’s attempts to restrict early voting in federal court last year. As a “special program fund” of the tax-exempt Donors Trust, Blum’s group does not have to disclose which funders of Donors Trust are giving him money, but he has identified two of them: the Bradley Foundation and the Searle Freedom Trust. The Wisconsin-based Bradley Foundation paid for billboards in minority communities in Milwaukee during the 2010 election with the ominous message “Voter Fraud Is a Felony!”, which voting rights groups denounced as voter suppression. Both Bradley and Searle have given six-figure donations to ALEC in recent years, and Bradley funded a think tank in Wisconsin, the MacIver Institute, that hyped discredited claims of voter fraud to justify the state’s voter ID law, currently blocked in state court.