What Did Jeb Bush Mean in His Comments About Not “Reauthorizing” the Voting Rights Act?

…t preclearance in some form which the Supreme Court gutted in the Shelby County v. Holder case. That’s not precisely “reauthorization”–the act was reauthorized in 2006, but then struck down in part in Shelby County. But this is how I think Bush took the question. It is possible to read the comment more broadly to reject other provisions of the VRA as well, including Section 2, which provides national voting rights…

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“Top Recent Downloads in Election Law on SSRN”

…Revised: 27 Aug 2015 7 47 Corporate Speech and the Rights of Others Thomas Wuil Joo University of California – Davis Law School Date posted to database: 7 Aug 2015 Last Revised: 18 Aug 2015 8 31 A Localist Critique of Shelby County v. Holder Justin Weinstein-Tull Stanford Law School Date posted to database: 11 Aug 2015 Last Revised: 21 Aug 2015 9 29 That We Are Underlings: The Real Problems in Disciplining Political Spending and the First…

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The Roberts Court at 10: Election Law

…down a strong conservative path. Citizens United v. Federal Election Commission freed corporate money in U.S. candidate elections and opened up a deregulatory era increasingly dominated by nominally independent “Super PACs.” Shelby County v. Holder eviscerated the congressional regime codified in Section 5 of the Voting Rights Act under which Congress required states and localities with a history of racial discrimination in voting to obtain…

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ELB Podcast, Episode 5. Nina Perales: Latino Voting Rights Struggles in Texas and Beyond

…cting litigation in San Antonio, raising questions about whether Texas discriminated against Latino voters and others? Has the demise of Section 5 of the Voting Rights Act thanks to the Supreme Court’s 2013 decision in Shelby County v. Holder hurt minority voters? On Episode 5 of the ELB Podcast, we talk to Nina Perales, vice president of litigation for the Mexican American Legal Defense and Education Fund, and one of the country’s…

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Sen. Murkowski Co-Sponsors Dem Bill to Fix Voting Rights Act

…worked mostly with Democrats on the Voting Rights Amendment Act, which was seen by Democrats as a fairly watered down measure to restore a preclearance regime for voting changes which were lost when the Supreme Court decided Shelby County v. Holder. The measure has gone nowhere, in part because it was thought that Rep. Eric Cantor would have pushed it (but he lost in the 2014 Republican primary). In response to lack of movement on this…

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

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

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

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

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

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

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Two Law and Political Process Study Group Panels at APSA

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

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

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

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“Election Law Federalism”

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

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

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

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2015 Supplement to The Law of Democracy

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

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

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

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“How to Save the Voting Rights Act”

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

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

…down a strong conservative path. Citizens United v. Federal Election Commission freed corporate money in U.S. candidate elections and opened up a deregulatory era increasingly dominated by nominally independent “Super PACs.” Shelby County v. Holder eviscerated the congressional regime codified in Section 5 of the Voting Rights Act under which Congress required states and localities with a history of racial discrimination in voting to obtain…

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“Voting Rights at 50”

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

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

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

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

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

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Revealing @SeanTrende-@Dale_E_Ho Exchange in NC Voting Rights Trial

I excerpt it in this post at The Monkey Cage: North Carolina passed its 2013 restrictive voting law just a month afterShelby. So is the change connected to is history of race discrimination? Real Clear Politics’ Sean Trende, testifying as an expert political analyst for North Carolina, noted that seven other states besides North Carolina had no same-day registration, no out-of-precinct voting, less than 17 days of early voting, no…

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An Academic Elegy

…altogether. When I assigned this paper to my class, one of the students said that she realized it’s time for her to start mourning the Voting Rights Act because it’s never coming back. For me, the mourning process began when Shelby County v. Holder came down. But until I’d read “The Voting Rights Act in Winter: The Death of a Superstatute,” I’d been a naïve cynic (or a cynical naïf). I’d hoped that I wasn’t being hopeful enough. But…

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“Podcast: Voting rights on trial in North Carolina”

…sdictions would be required to obtain federal approval for changes in their election laws. The Court ruled that the formula was unconstitutional in light of improved conditions in those previously covered areas. In this post-Shelby County world, lawsuits challenging new election regulations have been filed in several states. In fact, as of July 2015, a trial is underway in North Carolina to determine whether a law passed less than two months…

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“In Defense of the Equal Sovereignty Principle”

…hat can be said to treat the states disparately, the Court’s brand-new equal sovereignty principle is, as Justice Ginsburg put it in her strident dissent, “capable of much mischief.” This Article contends that the critics of Shelby County are only half right — and that the Shelby County majority, despite its cursory analysis, is half right too. The critics are correct that the Court seemingly pulled the equal sovereignty principle out of thin…

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“Accusations fly as NC House changes course on Greensboro redistricting”

…ote redrew the Wake County Board of Commissioners district boundaries in a change likely to favor Republicans. That bill passed quickly along party lines, but the Greensboro council redistricting prompted a bitter split among GOP legislators. And it drew comments from legislators who represent other areas, including criticism that the change will diminish the impact of black Greensboro residents. Before Shelby County, this plan would have…

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2015 Supplement to Election Law Casebook

…Law: Cases and Materials will be up to date through the end of the Supreme Court’s October 2014 term. It includes an edited version of of the Supreme Court’s new campaign finance case, McCutcheon v. FEC, an edited version of Shelby County v. Holder, and coverage of the Supreme Court’s consideration of new redistricting cases from Alabama and Arizona, raising new questions about racial gerrymandering claims and the scope of state power to enact…

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Don’t Be Surprised #SCOTUS May Kill Public Sector Unions. Justice Alito Asked for These Cases

…not immediately overturn the preclearance provision of the Voting Rights Act when it had the opportunity to do so in the 2009 NAMUDNO case. Instead it signaled the Act was unconstitutional, and then overturned it in the 2013 Shelby County case. As I’ve explained, the Court in Shelby County relied upon dicta in NAMUDNO as though that earlier case had settled it. Similarly, on the campaign finance side, Chief Justice Roberts and Justice Alito…

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What the Heck is Going On in Arizona Redistricting?

…ons had the ability to elect candidates of choice in a polarized political environment, under section 5 of the Act.  An additional question for SCOTUS is whether underpopulation is permissible for this purpose.  (And because Shelby County left section 5 no longer applicable, there’s still another question: even if it was once permissible, is it still?) The case is superficially related to Evenwel, one of the other big districting cases at SCOTUS…

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Breaking: #SCOTUS to Hear ANOTHER AZ Redistricting Case

…influence districts.  This could turn out to be a major case, although the first question seems to have been resolved by the Supreme Court’s summary affirmance in Larios v. Cox, and the second question seems mooted by Shelby County‘s killing of preclearance. I am not sure why the Court took this case rather than a simple summary affirmance, but we will find out soon enough. Perhaps the Court thought it should take the case while the…

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Is Chief Justice Roberts Really Consistent? Think Citizens United and Shelby County

…n two years ago they all were part of the majority in striking down key provisions of the Voting Rights Act that had been passed almost unanimously by Congress and signed into law by President George W. Bush.   In that case, Shelby County v. Holder, it was not even possible to tell what constitutional provision the majority thought was violated by the Voting Rights Act.  None of the four dissenters were the least bit concerned with deferring to…

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“Short Film About Victim of Texas Voter ID Law Shows Why We Need to Pass The Voting Rights Advancement Act Being Introduced Today”

Release: Today, as Sen. Patrick Leahy (D-VT) and Rep. John Lewis (D-GA) introduce the Voting Rights Advancement Act (VRAA) on the eve of the second anniversary of Shelby County v. Holder, the Campaign Legal Center is releasing a short film focusing on a lifelong voter disenfranchised by Texas’ voter photo ID law (SB 14).  The most restrictive and burdensome voter ID law in the nation, the Texas law was rejected by the Department of Justice…

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Democrats Have Stronger Proposal to Amend Voting Rights Act, But Huge Obstacles to Enacting It

…ancement Act” (not to be confused with the earlier “Voting Rights Amendment Act”) to fix what many see are problems with the Supreme Court’s gutting of the precelarance provisions two years ago in the Shelby County case. “The legislation will be formally introduced tomorrow by Senator Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, and leaders of the Black Caucus, Hispanic Caucus…

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“Setting Congress Up to Fail”

Margaret Kwonka has posted this draft on SSRN (forthcoming 17 Berkeley J. Afr.-Am. L. & Pol’y 97 (2015)).  Here is the abstract: In Shelby County v. Holder the Supreme Court invalidated key provisions of the Voting Rights Act of 1965 based on Congress’s failure to justify the formula used to determine which jurisdictions would be subject to the Act’s pre-clearance requirement of submitting all changes to voting procedures to the Justice…

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A Key Thing to Watch if Government Loses at SCOTUS in King v. Burwell

…ice Roberts] might make in defense of that position is that Congress has the ability to go back and fix any unclear language through a revised statute. Roberts telegraphed his willingness to take such an approach in the 2013 Shelby County vs. Holder case, which struck down a key provision of the Voting Rights Act. The provision the Supreme Court declared unconstitutional defined which states had to get federal approval (or pre-clearance) before…

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“Holder Rips ‘Disconnected’ Supreme Court Ruling on Voting Rights”

…a wrongly decided, factually inaccurate, and disconnected Supreme Court decision, too many in this country are trying too hard to make it too difficult for the people to express their views,” Holder said, referring to Shelby County v. Holder, the 2013 decision that invalidated a key provision of the Voting Rights Act. Holder’s comments were part of his keynote address at the opening night gala of the American Constitution…

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Linda Greenhouse on #SCOTUS Term, and Evenwel in the Next

…r the purpose of redistricting. The case reflects a cynical effort to maximize the voting power of Anglo Republicans in Texas, propelled to the court’s docket by the same legal team that brought us the Fisher case as well as Shelby County v. Holder, the 2013 case that gutted the Voting Rights Act. The theory behind the new case is that when noncitizens count – as they do everywhere in the country — in the population that must be spread evenly…

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“New Voting Rights Litigation Summary from CLC Shows Growing Voter Dilution and Suppression Efforts Since Supreme Court’s Shelby County Decision”

…n passed in states and municipalities across the country, particularly in jurisdictions that no longer have to comply with a key provision of the Voting Rights Act as a result of the Supreme Court’s decision two years ago in Shelby County v. Holder.  Jurisdictions have also passed election restrictions designed to benefit one party over the other, often under the guise of improving already-efficient election procedures and preventing…

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“Don’t Be Silly – THE PCEA WORKED: A Rejoinder to Some Critics of Hasen’s Slate Piece”

…ection will matter in the ongoing fights over election policy. First of all, the federal government has little if any influence over state and election laws; while renewal/revision of the Voting Rights Act in the wake of the Shelby County case would certainly re-establish Washington’s limited presence, the truth of the matter is that registration and voting are still almost exclusively the province of state and local governments. The next…

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“Race, Federalism, and Voting Rights”

…enefits of the Act outweighed its costs. Moreover, the Court failed to discuss whether the Reconstruction Amendments ought to matter at all to the federalism debate. In this Essay, we ask three basic questions in response to Shelby County. First, what does the Court mean by “federalism costs,” and why have these costs undermined the constitutionality of the VRA? Second, does the failure to discuss Reconstruction and the Reconstruction Amendments…

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2015 Supplement to Election Law Casebook Coming Soon

…Law: Cases and Materials will be up to date through the end of the Supreme Court’s October 2014 term. It includes an edited version of of the Supreme Court’s new campaign finance case, McCutcheon v. FEC, an edited version of Shelby County v. Holder, and coverage of the Supreme Court’s consideration of new redistricting cases from Alabama and Arizona, raising new questions about racial gerrymandering claims and the scope of state power to…

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“Top Recent Downloads in Election Law on SSRN”

…ights (Topic) RECENT TOP PAPERS for all papers first announced in the last 60 days 3 Apr 2015 through 2 Jun 2015 Rank Downloads Paper Title 1 551 Do the Facts of Voting Rights Support Chief Justice Roberts’s Opinion in Shelby County? J. Morgan Kousser California Institute of Technology Date posted to database: 11 Apr 2015 Last Revised: 11 Apr 2015 2 87 A Checklist Manifesto for Election Day: How to Prevent Mistakes at the Polls Joshua A….

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“Dignity and Discriminatory Intent: What the Marriage Equality Cases Tell Us About Voter ID”

Ellen Katz has posted this draft on SSRN (forthcoming University of Chicago Legal Forum).  here is the abstract: Two years after Shelby County v. Holder and United States v. Windsor, a good deal of litigation has addressed the legality of electoral restrictions like voter ID and bans on same-sex marriage. This Article examines the relationship between these two lines of cases. It argues that the greater deference accorded to state action in the…

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Call for Papers – Voting Rights Act Symposium

…in our national recollection of the Civil Rights era and the 20th century ills that necessitated legislation such as the VRA and the Civil Rights Act. In light of the VRA’s 50th anniversary and recent SCOTUS decisions (from Shelby Co. to Ala. Legislative Black Caucus), we think it appropriate to devote enough space in one of our forthcoming editions to an articles symposium on point. As of now, though, the quantity and quality of articles we’ve…

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“Only Voters Count? Conservatives ask the Supreme Court to restrict states’ rights and overturn precedent.”

…same peoplewho backed attacks on affirmative action at the Supreme Court in the Fisher v. University of Texas at Austin case and successfully got the Supreme Court to strike down a key portion of the Voting Rights Act in the Shelby County v. Holder case. It is an agenda not about states’ rights but about getting the Supreme Court to force states to empower conservatives and force onto all of us the theories of representation and power they…

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“Supreme Court ‘Litmus Test’ Emerges in White House Race”

…buy politicians.” Eight days later, Clinton told supporters in Iowa, “I will do everything I can do to appoint Supreme Court justices who will protect the right to vote and not the right of billionaires to buy elections.” Her reference to the right to vote suggests she would look for candidates who would overturn not only Citizens United but also the 2013 ruling in Shelby County v. Holder that found a key section of the Voting…

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Breaking News: #SCOTUS to Hear One Person, One Vote Case

…m a three judge court in Evenwel v. Abbott, a one-person, one vote case involving the counting of non-citizens in the creation of electoral districts. Ed Blum, the force behind the Fisher anti-affirmative action case and the Shelby County case striking down a key portion of the Voting Rights Act is also behind this case. The question involves whether Texas can draw districts using total population rather than total voters, an issue especially…

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New Bill to Blunt Effect of Bad #SCOTUS Redistricting Ruling in Arizona Case

…objections of state legislatures. Perhaps this bill is okay if it is seen as Congress simply approving particular congressional districts (although those districts were drawn by commissions). Perhaps there is a problem under Shelby County v. Holder‘s equal sovereignty provisions (that’s the case striking down the preclearance provisions of the Voting Rights Act applied only to some states) because this bill applies only to 6 states….

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Symposium on Voting Rights in the Wake of Shelby County v. Holder

…er the March on Washington Deborah N. Archer PDF The Second Reconstruction Is Over Robert V. Ward Jr. PDF The Voting Game Sarah R. Robinson PDF Setting Congress up to Fail Margaret B. Kwoka PDF Electoral Silver Linings after Shelby, Citizens United and Bennett Ciara Torres-Spelliscy PDF Shelby County v. Holder: A Critical Analysis of the Post-Racial Movement’s Relationship to Bystander Denial and Its Effect on Perceptions of Ongoing…

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#SCOTUS Remands North Carolina Racial Gerrymandering Case for Reconsideration

…n if not the earthshattering ones promised by Justice Scalia. Although Republican states which pack minority voters into districts can no longer claim to do so to comply with Section 5 of the Voting Rights Act (thanks to the Shelby County case), they still may claim to do so to comply with Section 2 of the Act. Indeed, as Professor Justin Levitt has shown, minority packing and reliance on the Voting Rights Act have become a familiar tool for…

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