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

…er-informed understanding of what the Section 4/5 preclearance regime did and did not do before Shelby County is needed to shed appropriate light on possible directions for policy changes in the wake of the Court’s decision.  In addition, the assumption that Section 5 would have been an effective tool to block emerging barriers to political participation, if not for Shelby County, is more complicated than often recognized.  To fully protect acces…

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“Originalism: It’s Not Just for Conservatives Anymore”

Adam Winkler in SCOTUSBlog McCutcheon symposium talks of Lessig/Gans and Brennan Center amicus briefs. In some ways, the McCutcheon amici highlight the limits of liberal originalism. If the embrace of history is merely strategic, designed to persuade one member of the Roberts Court’s conservative majority to vote for liberal outcomes (say, upholding aggregate contribution limits), its impact is likely to be quite minimal. None of the Justices is…

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“The Real Price of Congress’s Gridlock”

Robert Reich NYT oped: Congress’s paralysis has also encouraged the Supreme Court to enter the political fray. Normally the judicial activism of recent years could be checked by Congressional action. But not now. Justice Anthony M. Kennedy’s opinion for the majority in the 2010 Citizens United case, which struck down limits on corporate campaign contributions, rested partly on the presumption that Congress would require corporations to disclose…

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Bail-in: local, non-southern edition

Justin here. In the wake of Shelby County, attention will naturally follow cases seeking bail-in for jurisdictions once covered by sections 4 and 5.  Like Texas, where there’s the opposite of the “New York, New York” scenario: if you can make it anywhere, you can make it there.  And now, North Carolina, which had 40 counties covered under sections 4 and 5, and where the legislature’s latest has inspired a request to bail…

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Texas Ups the Ante in Fight Over Voting Rights Act, Betting on An Emboldened Conservative Supreme Court

…unconstitutional application of Congress’s powers to enforce the 14th or 15th Amendments. Texas says that Shelby County requires that any remedy be “congruent and proportional” to current racial discrimination, and that a preclearance remedy is too strong even with evidence of current racism unless the racism is “flagrant” and “pervasive.” To me, this is a clear overreading of Shelby County. Recall that…

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“Beyond the Discrimination Model on Voting”

Sam Issacharoff has posted this draft on SSRN (forthcoming, Harvard L. Rev.).  Here is the abstract: The Supreme Court’s contentious decision in Shelby County v. Holder closes the chapter on the most important and most successful of the civil rights laws from the 1960s. For the majority of the divided Court, the preclearance requirements of the Voting Rights Act for changing electoral practices stigmatized sovereign states and no longer bore a l…

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“Texas Fights New Voting Supervision”

…In a fifty-four-page filing Monday evening, state officials cited the Supreme Court’s June 25 decision in Shelby County v. Holder, and told the District Court that it “cannot impose preclearance on Texas while remaining faithful to Shelby County and the constitutional principles on which it relies.”  Preclearance obligations under the Voting Rights Act of 1965, the state contended, can now only be ordered if racial bias in voting in a state rise…

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Tokaji’s Election Law in a Nutshell, Shipping this Month

I’m happy to announce the imminent publication of Election Law in a Nutshell, coming later this month from West Academic Press.  It’s designed for use by students with all the casebooks in the field. It will also be useful to practitioners looking for a succinct summary of the law, and others with an interest in election law.  Here’s the description on West’s website: Election law is a dynamic and quickly growing field th…

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Enforcement of Section 3 of the VRA: The Second Phase?

As the Department of Justice (DOJ) and other litigants begin to turn to Section 3 to seek to put specific jurisdictions under judicial preclearance based on recent judicial findings of intentional discrimination, it’s important to note that Section 3′s text appears to contemplate this only as a remedial tool in existing litigation.  Because there are not that many active pieces of voting-rights litigation pending around the country,…

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“Obama’s Scheme to Take Over Texas”

Greg Abbott, Texas’s AG and a gubernatorial candidate, has written this oped for the Washington Times. It concludes: On top of that, putting states like Texas back under federal oversight is unnecessary to protect voting rights. Although the Supreme Court has ended the preclearance requirement, the protections of the Voting Rights Act still apply. Anyone claiming discrimination by a state voting law can sue in federal court. In fact, that…

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Justice Ginsburg: Liberal SCOTUS Justices Were Suckers, Not Savvy, in Joining 2009 Voting Rights Case

Justice Ginsburg, in a rare interview with AP has given insight into a recent strategic choice made by the liberal Supreme Court Justices. In a recent Slate piece, I asked whether the liberal Justices are savvy or suckers for signing on to recent voting rights and affirmative action rulings: At first glance, the 7–1 vote in the Fisher affirmative action case decided by the Supreme Court is puzzling. While the decision about the University of Te…

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Is There A Jurisdictional Problem with A Bail-In Request in Texas?

Michael Ellement emails: I enjoyed your post today on General Holder’s comments regarding a bail in of Texas.  I am curious though on your thoughts about the court’s jurisdiction in the case, and the possibility of the bail in. Section 3 states that the District Court can “retain jurisdiction” after finding a violation of the fourteenth or fifteenth amendments. Perhaps I have not followed the Texas litigation closely enou…

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Elmendorf and Spencer: “New Tools for ‘Bail In’: Using the Geography of Discrimination to Reconstruct VRA Preclearance, Judicially”

…ment of Justice. There are, however, two large hurdles to reconstructing some semblance of the pre- Shelby County preclearance regime through Section 3 litigation: (1) the difficulty of proving intentional race discrimination, which is the only kind of race discrimination that the 14th and 15th amendments prohibit and therefore a prerequisite for bail-in remedies; (2) Shelby County’s warning that preclearance is an “extraordinary” remedy justifie…

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“Preclearance Without Statutory Change: Bail-In Suits Post-Shelby County”

Michael Ellement has posted this (extremely timely) draft on SSRN (forthcoming Yale Law and Policy Review Online).  Here is the abstract: This short piece analyzes the potential for bail-in suits under Section 3 of the Voting Rights Act, following the Supreme Court’s decision in Shelby County v. Holder. The bail-in process allows a court, upon finding a voting rights violation of the Fourteenth or Fifteenth amendments, to impose a system s…

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Will Baude on DOJ’s Bail-In Announcement

Baude: One thing I’d add, though: Hasen seems to assume that if Texas is bailed in and the case goes to the Supreme Court, Justice Kennedy will be the marginal vote. But supporters of bail-in might also want to keep an eye on Justice Scalia. In his Tennessee v. Lane dissent, he wrote: For reasons of stare decisis, I shall henceforth apply the permissive McCulloch standard to congressional measures designed to remedy racial discrimination by the…

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Why AG Holder’s Decision to “Bail In” Texas Under the Voting Rights Act is a Big Deal, Legally and Legislatively, Post-Shelby County

…ggressively to try to restore what it can of the preclearance regime the Supreme Court effectively gutted in its Shelby County decision. Covering Texas would be a big deal, but it is nowhere near what existed before Shelby County.  If the three-judge court goes along, the issue could well end up back before the Supreme Court, perhaps even this coming term, to possibly kill what remains of preclearance. It is also a big deal legislatively: no matt…

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Don’t Miss Linda Greenhouse on the Chief, the Job of a Justice and Judicial Minimalism

NYT Opinionator: I think the chief justice is saying that there’s a disconnect between what people seem to want from the Supreme Court – answers to the country’s most profound questions – and what the current crop of justices has been trained and selected for – namely, delivering small-bore answers. If you want something more from us, I hear him as implying, then maybe we’re not the justices for you. If that was his point, it’s easy to find some…

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“Jim Sensenbrenner, GOP Voting Rights Act Champion, Fears Black Panthers Case Will Stop Reform”

Ryan Reilly gets the big quotes from Rep. Sensenbrenner on the prospects for fixing the VRA: “It’s going to be much more difficult,” Sensenbrenner said. “Both figuring out how to make Section 4 compliant with the court’s decision in the Shelby County case, as well as figuring out what type of a formula would be able to pass both houses, is going to require an awful lot of political input and negotiations. “This is a puzzle that is not goin…

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“Phew:” Liberal SCOTUS Justices See Themselves as Savvy, Not Suckers

In a recent Slate piece, I asked whether the liberal Justices are savvy or suckers for signing on to recent voting rights and affirmative action rulings: At first glance, the 7–1 vote in the Fisher affirmative action case decided by the Supreme Court is puzzling. While the decision about the University of Texas’ admissions policies was essentially a punt, putting off for another day the future constitutionality of affirmative action programs, t…

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“RECENT HITS (for all papers announced in the last 60 days) TOP 10 Papers for Journal of LSN: Election Law & Voting Rights (Topic)”

I’ll try to post the SSRN Recent Hits in this area every two months:   RECENT HITS (for all papers announced in the last 60 days) TOP 10 Papers for Journal of LSN: Election Law & Voting Rights (Topic) May 24, 2013 to July 23, 2013 Rank Downloads Paper Title 1 167 The Seventeenth Amendment and Federalism in an Age of National Political Parties David Schleicher, George Mason University – School of Law,…

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“Conservatives prepare to finish off Voting Rights Act”

MSNBC reports.  Zachary Roth, the reporter, tried to get conservative lawyers to discuss their views on whether section 2 is constitutional. Asked via email to confirm that Section 2 is constitutional, Carvin didn’t respond. Bert Rein, the veteran conservative lawyer who successfully argued Shelby County before the Supreme Court, ruled out a direct constitutional challenge. (“We do not believe that it is unconstitutional on its face,” Rein told…

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Revised Elmendorf and Spencer Paper Proposing New Coverage Standard for Voting Rights Act

The Geography of Racial Stereotyping: Evidence and Implications for VRA Preclearance After Shelby County The Supreme Court in Shelby County v. Holder (2013) effectively enjoined the preclearance regime of the Voting Rights Act (VRA). The Court deemed the coverage formula, which determines the jurisdictions subject to preclearance, insufficiently grounded in current conditions. This paper proposes a new, legally defensible coverage approach ba…

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“Key date for test of voting law’s preclearance requirement”

Lyle Denniston: A key date — July 26 — has now been set for a test of the Obama administration’s view on a legal mechanism for continuing to protect minority voters against discrimination at the polls — including court review of new election laws before they go into effect.  The mechanism potentially could allow the government to salvage something very significant from its defeat in the Supreme Court’s ruling last month on the Voting Rights Act…

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Josh Blackman: Justice Stevens Neglects to Mention He Signed NAMUDNO, Which Paved the Way for Shelby County

He writes: And this part is too rich. Stevens critically references an opinion Roberts wrote–NAMUDNO–that Stevens joined! The Court’s heavy reliance on the importance of a “fundamental principle ofequal sovereignty among the States,” while supported by language in an earlier opinion by Chief Justice Roberts, ignored the fact that Article I, Section 2 of the Constitution created a serious inequality among the states. Those time bombs with long fu…

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2013 Election Law Casebook Supplement Now Available

The 2013 Supplement to Lowenstein, Hasen, and Tokaji, Election Law–Cases and Materials (5th ed. 2013), is now available for download at this link: http://electionlawblog.org/wp-content/uploads/2013-supp-final.pdf The Supplement is up-to-date, and includes edited versions of Shelby County v. Holder, ATP v. Bullock, and McCutcheon v. FEC, along with extensive notes on the future of the Voting Rights Act, the upcoming Supreme Court consideration of…

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“A Test of Seriousness for Those Who Say Section 2 is Sufficient”

Sam Bagenstos sent the following message to the Election Law listserv, reposted here with permission: In his testimony at today’s Senate Judiciary Committee hearing, Michael Carvin argued that preclearance is unnecessary because Section 2, with its post-1982 “results test,” provides sufficient protection against voting discrimination nationwide.  In their prepared testimony for tomorrow’s House Judiciary Committee hearing…

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Von Spakovsky, J. Christian Adams Testifying About Shelby County and VRA at House Hearing Tomorrow

For those expecting compromise and a bipartisan spirit to fix Voting Rights Act section 5 coming out of tomorrow’s hearing, fuhgeddaboutit! (Bob Kengle and Spencer Overton are the Democratic-called witnesses.) Ari Melber says don’t be a naysayer about a congressional fix for the VRA after Shelby County. I’m a naysayer….

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The Chances of a Deal to Fix the VRA After Shelby County? Observations about the Senate Judiciary Committee Hearing

I had a chance to watch a good part of the Senate Judiciary Committee hearing today. It makes me more pessimistic about the chances of a deal to improve the Voting Rights Act after the Supreme Court effectively gutted section 5 in the Shelby County case. Back in February I organized a Reuters Opinion symposium on what Congress could do if the Supreme Court struck down section 5. My thinking was that such a decision would be controversial and Rep…

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Is Voting Rights Act Section 2 in Constitutional Danger from the Supreme Court?

Will Baude raises the question in light of Shelby County.  I address this issue briefly in my APSA paper, Shelby County and the Illusion of Minimalism. My bottom line is yes, Section 2 is in danger of being struck down as an unconstitutional exercise of congressional power under Shelby County.  It was in danger before, and Shelby County moderately increases that danger.  Unlike section 5, section 2 has no geographic or temporal limits, and furth…

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Redistricting Versus Access to the Ballot Box: A Republican View on Potential Bipartisan VRA Reform

As mentioned in a prior post, a lot of good discussion came out of the recent Brookings conference on the aftermath of the Court’s decision on the Voting Rights Act.  With respect to the prospects of any kind of legislation that might be able to attract bipartisan support in Congress, I thought it worth quoting the perspective of Mark Braden, whose credentials as a redistricting and election-law expert for the Republican Party I described…

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Justice Ginsburg’s Vigor, as Evidenced by Her Shelby County Dissent

[This is one of a series of posts on issues related to the Shelby County voting rights case flagged, but not fully developed, in my draft paper, Shelby County and the Illusion of Minimalism.] One of the last major opinions Justice Stevens wrote for the Supreme Court, his dissent in the Citizens United campaign finance case, was a disappointment. Rather than being a strong and crisp statement of principles to support reasonable campaign finance r…

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