The VRAA and the Future of Voting Rights Enforcement

For those following today’s hearings, I have an editorial today in the National Journal.  It notes the continuities between the VRAA’s enforcement strategy and that used in other regulatory arenas, something I’ve written about in the past.  It also draws upon Ellen Katz’s great piece on Section 5 enforcement in South Carolina….

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“Shelby County One Year Later: Good for Voting Rights?”

Franita Tolson: “Despite these developments, the lesson of Shelby County should not be that states have broad authority to impose restrictive voting regulations. The true lesson of the decision, one year later, is that even the most painful and costly loss can be a vehicle for effectuating change. The loss of the preclearance regime forced advocates to be more aggressive in using creative legal arguments and obscure statutory provisions in…

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One Year After Shelby County

…loak of judicial minimalism, Chief Justice John G. Roberts Jr., writing for a conservative Supreme Court majority in Shelby County v. Holder, cripples Section 5 of the Voting Rights Act. The court pretends it is not striking down the act but merely sending the law back to Congress for tweaking; it imagines that Congress forced its hand; and it fantasizes that voting discrimination in the South is a thing of the past. None of this is true.  …

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VRAA DOA?

…ess did not act, even after the Supreme Court’s ruling in NAMUDNO in 2009 warning the act was unconstitutional. Shelby County‘s equal sovereignty principle now hangs out there as the law. In the meantime, AG Holder has antagonized Texas Republicans and Tea Party types by going after Texas and North Carolina for bail in. Texas Republicans will not be happy they get covered again under the new VRAA coverage formula. Conservatives in the House will…

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How is the SCOTUS Opinion in Bond Like NAMUDNO?

…ding the political branches a window of time in which to take action. This hesitancy was nowhere to be found in Shelby County, Alabama v. Holder, which the Court chose to hear despite the absence of a circuit split. By exhibiting a high degree of restraint in the moment, Northwest Austin ironically established the groundwork for Shelby County‘s subsequent invalidation of a key federal statute with bipartisan support in Congress. Bond looks a lot…

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Top Recent Downloads in Election Law on SSRN

…in University of Chicago – Law School Date posted to database: 11 Apr 2014 Last Revised: 17 May 2014 6 30 Shelby and Section 3: Pulling the Voting Rights Act’s Pocket Trigger to Protect Voting Rights after Shelby County v. Holder Paul M. Wiley Washington and Lee University – School of Law Date posted to database: 9 Apr 2014 Last Revised: 9 Apr 2014 7 30 Compulsory Voting and the Attitudinal Deconsolidation of Democracy Shane P….

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Volume 13:2 of ELJ Now Available, With 2-Week Free Access to AALS Symposium Articles

…7. Abstract | Full Text PDF or HTML | Reprints | Permissions AALS Symposium: The Right to Vote from Reynolds to Shelby County and Beyond Voter Viewpoint Discrimination: A First Amendment Challenge to Voter Participation Restrictions Lori A. Ringhand Election Law Journal: Rules, Politics, and Policy. June 2014, 13(2): 288-309. Abstract | Full Text PDF or HTML | Reprints | Permissions The Play in the Joints of the Election Clauses Derek T. Muller E…

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“Savior Through Severance: A Litigation-Based Response to Shelby County v. Holder”

…s-Civil Liberties Law Review). Here is the abstract: On June 25, 2013, the Supreme Court issued its decision in Shelby County v. Holder, ruling that the coverage formula in Section 4(b) of the Voting Rights Act is unconstitutional and “can no longer be used as a basis for subjecting jurisdictions to preclearance” under Section 5. In the four months after Shelby County was decided, sixteen states enacted restrictions on voting that Republicans bel…

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Federal District Court Denies $2 Million Attorneys Fees Request to Shelby County Plaintiffs

You can find Judge Bates’ 35-page thoughtful opinion here (via Mike Scarcella). The judge’s main point is that Congress did not intend attorneys fees in cases in which a plaintiff was not enforcing voting rights under the Fifteenth Amendment but instead was seeking to overturn a congressional statute enforcing voting rights. It seems a sensible result to me, but it raises a number of issues of first impression, so there could be an a…

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“The Play in the Joints of the Election Clauses”

…highlights the uncertainty in two recent Supreme Court opinions, Arizona v. Inter Tribal Council of Arizona and Shelby County v. Holder, and notes that the Court’s jurisprudence has left considerable “play in the joints,” not necessarily because the Election Clauses are in tension, but because of its unwillingness to explain how matters like voter identification and registration should probably be allocated. It identifies some i…

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“The Voting Rights Amendment Act of 2014: A Constitutional Response to Shelby County”

ACS: ACS is pleased to distribute “The Voting Rights Amendment Act of 2014: A Constitutional Response to Shelby County,” an Issue Brief by William Yeomans, Fellow in Law and Government, American University Washington College of Law; Nicholas Stephanopoulos, Assistant Professor of Law, The University of Chicago Law School; Gabriel J. Chin, Professor of Law, University of California-Davis School of Law; Samuel Bagenstos, Professor of Law, Th…

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SCOTUS’s Recycled Outtakes?

…e state through the initiative process can ban affirmative action). But the comment got me wondering how much other recycling we’ve seen.  How much of Justice Stevens’ Citizens United dissent came from the draft Souter dissent which did not see the light of day?  How much of Justice Ginsburg’s Shelby County dissent was originally draft (by whom?) for NAMUDNO. I guess our grandchildren might find out when papers are released….

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Justice Sotomayor’s Schuette Dissent Talks of Shelby County and Voting Rights

…he reference.  There are a number of election cases mentioned in the dissent, including these references to the Shelby County decision, striking down a key part of the Voting Rights Act. 11. Attempts by the majority to make it more difficult for the minority to exercise its right to vote are, sadly, not a thing of the past. See Shelby County v. Holder, 570 U. S. ___, ___ (2013) (slip op., at 15–17) (GINSBURG, J., dissenting) (describing recent ex…

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New Ed Blum Voting Rights Lawsuit in Texas

…Morrissey of Wiley Rein, LLP in Washington, D.C. are counsel for the Plaintiffs. They successfully represented Shelby Co. Alabama in Shelby Co. Ala v. Holder and Abigail Fisher in Fisher v. Univ. of Texas last term at the U.S. Supreme Court.  Also representing the Plaintiffs is Meredith B. Parenti of Parenti Law PLLC in Houston, Texas.   Edward Blum, director of the Project on Fair Representation, said, “One-person, one-vote is the cornerstone o…

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Updated/Final Versions of Some of My Articles on Campaign Finance, Voting Rights

…heon, of Super PAC Contributions, Corruption, and the Proxy War over Coordination, forthcoming in the Duke Journal of Constitutional Law & Public Policy. I have posted the final version of Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform, 8 Harvard Law & Policy Review 21 (2014) I have posted the final version of Shelby County and the Illusion of Minimalism, 22 William and Mary Bill of Rights J. 713 (2014)…

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About that WSJ Article on VRA Section 3 and Travis Crum…

…ry state has always been subject to the Voting Rights Act. Section 5 pre-clearance—the kind the Court gutted in Shelby County—was traditionally applied in Southern states, true. But the VRA is more than just Section 5. And Section 3 has already been applied outside the “traditional” footprint of Section 5 pre-clearance: counties in Nebraska, South Dakota, California, and even the entire state of New Mexico have been under Section 3 pr…

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The Court and Institutional Realism: McCutcheon

…latures, and state courts. After developing this framework, the article applies it to the Supreme Court’s Shelby County decision, in which the Court struck down part of the Voting Rights Act, and shows that the case hinges on how formalist or realist the Court ought to be regarding Congress. The general struggle in how the law should conceive public institutions can be seen as the modern successor to the early 20th century tension between f…

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Harvard Law and Policy Review Publishes Symposium Issue: Elections In America

…sman John P. Sarbanes & Raymond O’Mara III Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform, Richard L. Hasen  Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote , James Blacksher & Lani Guinier  Responding to Shelby County: A Grand Election Bargain, Daniel P. Tokaji Redistricting Reform and the California Citizens Redistricting Commission, Angelo N. Ancheta…

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“Formulating Voting Rights Act Remedies to Address Current Conditions”

…inority voters. Based on analysis of congressional elections from 1960 to 2010, I assess the central holding of Shelby County, Alabama v. Holder, and other controversial areas of VRA enforcement. My results support the Court’s finding that the Act’s historic coverage formula does not accurately reflect current political conditions. However, my results challenge prevailing views on two points. I conclude that uniform standards are problematic beca…

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“Shelby and Section 3: Pulling the Voting Rights Act’s Pocket Trigger to Protect Voting Rights after Shelby County v. Holder”

…SSRN (forthcoming, Washington and Lee Law Review).  Here is the abstract: The Supreme Court’s decision in Shelby County v. Holder presents voting rights advocates with a difficult challenge: finding an effective substitute for the preclearance regime struck down by the Court. The best possible alternative may live within the Voting Rights Act itself in Section 3(c)’s “pocket trigger.” Section 3(c) permits a federal court t…

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Thomas Alone on Campaign Finance?

…he ability of the state of Washington to make public the names of voters signing referendum petitions. Again in Shelby County v. Holder, the 2013 blockbuster case preventing Congress from enforcing a part of the Voting Rights Act which required states with a history of racial discrimination in voting to get approval before making changes in their voting rules, Thomas alone would have gone farther than the majority. While the majority struck the c…

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Top Recent Downloads in Election Law on SSRN

…ads Paper Title 1 167 Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder James Uriah Blacksher and Lani Guinier Attorney at Law and Harvard Law School Date posted to database: 24 Feb 2014 Last Revised: 24 Feb 2014 2 92 The 2013 Philippine Mid-Term Election: An Empirical Analysis of Dynasties, Vote Buying and the Correlates of Senate Votes Ronald U. Mendoza, Mario Antonio Lopez, David…

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Are Things Getting Better with Restrictive Voting Laws? The Answer is Unclear

…ngressional legislation some of the protections of the Voting Rights Act lost through the Supreme Court’s Shelby County decision are uncertain at best. The U.S. Election Assistance Commission, which has a crucial role in certifying voting technology and providing best practices for states and localities running elections, is still dead, thanks to a blockage by Republicans of nominees in the Senate. So are things really getting better?  I th…

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Re: From the Hobby Lobby oral argument: Should legislation passed by unanimous vote be invalidated or narrowly construed?

…mplications as well. Just a few things that popped out at me while reading Will’s piece: 1. On Justice Scalia’s Shelby County v. Holder comment that the unanimous vote in favor of renewing the VRA was about the “perpetuation of racial entitlement” and the difficulty of undoing such entitlements through the normal legislative process:  Much has been written about this comment, but what strikes me is that it seems almost like a cousin—a hostile cou…

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“After Shelby County: Getting Section 2 of the VRA to Do the Work of Section 5″

…itten an important new paper that voting rights folks need to read: Until the Supreme Court put an end to it in Shelby County v. Holder, Section 5 of the Voting Rights Act was widely regarded as an effective, lowcost tool for blocking potentially discriminatory changes in election law and administration. The provision the Supreme Court left standing, Section 2, is generally seen as expensive, cumbersome and almost wholly ineffective at blocking c…

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Justice Scalia’s Interesting Views of Shelby County and the “Equal Sovereignty” Principle

…t I had written. I asked him how he could sign on to Justice Roberts’ opinion in the recent voting rights case (Shelby County v. Holder) which announced a brand new constitutional principle-that Congress could not treat different states differently without a really strong reason-given that this limitation is nowhere in the text of the Constitution nor supported by its original meaning.  Scalia fumbled a bit, said he didn’t read the case that way,…

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DOJ Shifts Voting Section Priorities after Shelby County Guts Section 5

From DOJ’s budget submission to Congress (p. 44): Because of the Shelby County case, the Voting Section’s work will necessarily shift to greater affirmative efforts to detect and investigate voting practices that violate federal law, to more affirmative litigation to enjoin such practices, and to additional monitoring of elections throughout the country each year. Resources previously devoted to Section 5 reviews are being shifted to monit…

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On the Road to Arguing for the Unconstitutionality of Section 2 of the Voting Rights Act

I’ve been sounding this alarm for a while, beginning with leading up to the Shelby County oral argument.  Opponents of the constitutionality of Voting Rights Act Section 5 made the claim, among others, that Section 5 was no longer necessary to protect minority voting rights because other provisions of the Act, including Section 2, would do that work.  Yet some of the very constitutional arguments against Section 5 (such as the argument tha…

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“Free at Last: Rejecting Equal Sovereignty and Restoring the Constitutional Right to Vote: Shelby County v. Holder”

…).  Here is the abstract: The “equal sovereignty” principle the Supreme Court majority relied on in Shelby County v. Holder to strike down the coverage formula in Section 4 of the Voting Rights Act is rooted in the jurisprudence of slavery. In the infamous 1857 case of Dred Scott v. Sandford, Chief Justice Roger Taney held that black Americans, slave or free, were not members of the sovereign people and could never be “citizens&…

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Senator Ted Cruz Distorts Supreme Court’s Voting Rights Holding

…ll indications Sen.Ted Cruz is a brilliant lawyer. So I take his mischaracterizing of the Supreme Court’s Shelby County case as being disingenuous and not simply misguided. Sen. Cruz writes: It is disturbing that new efforts are being made in the House and Senate to resurrect voting rules that were recently deemed unconstitutional by the Supreme Court. We should protect the civil rights of every American, and other sections of the Voting Ri…

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Coming Late Summer: Legislation, Statutory Interpretation & Election Law: Examples & Explanations

…and Redistricting 11.1     Origins of the Voting Rights Act and the Workings of Section 5 Preclearance 11.2     Shelby County and the End of Section 5 Preclearance 11.3     Section 2 of the Voting Rights Act: Redistricting and Beyond 11.3.1  Section 2 and Redistricting 11.3.2  Section 2 Beyond Redistricting 11.4     Racial Gerrymandering Claims and the Future of the Voting Rights Act   12.           Election Administration 12.1     Introduct…

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“Justice Ginsburg’s Umbrella”

…higan Press, 2014).  Here is the abstract: This Essay relies on an analogy pressed in the dissenting opinion in Shelby County v. Holder to describe an increasingly prominent conception of federal anti-discrimination law. It is a conception that sees the existing regime to be a source of unjust enrichment to its beneficiaries, one that does not simply make victims of undeniable discrimination whole, but instead places a host of interested parties,…

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DOJ Changes Its Page Describing Section 5 of the Voting Rights Act

On February 17 I noted that the DOJ page on Section 5 gave no indication that Shelby County had been decided and that section 5 was no longer being enforced against previously covered jurisdictions. The page has now been updated, with a top section reading:   The Shelby County On June 25, 2013, the United States Supreme Court held that it is unconstitutional to use the coverage formula in Section 4(b) of the Voting Rights Act to determine w…

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“Responding to Shelby County: A Grand Election Bargain”

…vard Law & Policy Review).  Here is the abstract: The immediate reaction to the Supreme Court’s decision in Shelby County v. Holder was predictably fast, furious, and fissured. Some lauded the decision as a long overdue recognition that things really have changed in the South since the bad old days of mass disenfranchisement, so effectively demolished by the Voting Rights Act of 1965 (VRA). Others lamented the Court’s unceremonious disposal o…

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“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

…ruary 3, 2014 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 North Carolina (U…

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