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

…t: The Voting Rights Act, the most successful civil rights statute in American history, is dying. In the recent Shelby County decision, the U.S. Supreme Court signaled that the anti-discrimination model, long understood as the basis for the VRA as originally enacted, is no longer the best way to understand the voting rights questions of today. Voting rights law and policy are at a critical moment of transition. It is likely the case that the supe…

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Upcoming Speaking Engagements

…a’s initiative process or helped check its abuses?) Jan. 28  Voting Rights Under Fire? The Value of a Vote Post Shelby County (OC Bar/ADL/UCI Law/Orange County Jewish Bar Association Event) Feb. 7 The Future of Campaign Finance Reform (Hosted by the Duke Journal of Constitutional Law and Public Policy and the Center on Law, Race, and Politics, where I’ll be presenting Super PAC Contributions, Corruption, and the Proxy War over Coordination)…

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Quote of the Day, MLK Day Edition

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

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

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

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Initial Thoughts on the Proposed Amendments to the Voting Rights Act

…violations, and in the case of subdivisions, recent minority voter turnout statistics. This tends to defeat the Shelby County holding that requires under principles of “equal sovereignty” of states that any preclearance regime be tied to current conditions. (For my critique of these principles, see  Shelby County and the Illusion of Minimalism, William and Mary Bill of Rights J. (forthcoming 2014) (draft available).)  The one caveat i…

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What the New Voting Rights Act Bill Means

…n a nutshell, here’s what it means . . . . Recent Discrimination:  The new bill responds to the Supreme Court’s Shelby County opinion by tying preclearance to recent instances of discrimination (both with the new coverage formula and enhanced bail-in). Deterrence:  Pre-Shelby preclearance deterred bad activity in all or parts of 15 states because politicians knew their voting changes would be reviewed.  The new bill will deter bad activity by req…

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ELB Vacation Quick Hits

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

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Blog Downtime, Blogging Break, and Happy Holidays!

…rder to Vote in North Carolina and Elsewhere, 127 Harvard Law Review Forum (forthcoming 2014) (draft available) Shelby County and the Illusion of Minimalism, William and Mary Bill of Rights J. (forthcoming 2014) (draft available) Three Wrong Progressive Approaches (and One Right One) to Campaign Finance Reform, Harvard Law & Policy Review (forthcoming Winter 2013) (draft available) Keynote Address of Prof. Richard L. Hasen Given to the Voting…

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

…is the abstract: After the Supreme Court invalidated the core of the Voting Rights Act’s preclearance regime in Shelby County v. Holder, civil rights activists proposed a variety of legislative responses. One set of responses, which gained quick favor in influential precincts in the legal academy, sought to move beyond measures like the Voting Rights Act that targeted voting discrimination based on race or ethnicity. These responses instead sough…

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

…sent time in California and elsewhere, and how these parts are being used in those areas formerly subject to preclearance.  Third, I will describe the effect of Shelby County on the constitutionality of other parts of the Voting Rights Act as well as on the constitutionality of the California Voting Rights Act.  Finally, I will discuss Congress’s reaction to the ruling and the possibility of a legislative fix for the Shelby County ruling….

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

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

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

…red a cumulative voting remedy.) Finally, and most significantly, the California Voting Rights Act imposes standards which are much easier to meet than the federal voting rights standards.  If someone brought a federal constitutional equal protection challenge against the Act, will it stand?  The Supreme Court a few years ago refused to take a CVRA case, but another case might fare better, especially in a post-Shelby County world.  …

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Top Recent Downloads in Election Law on SSRN

…f Law, University of Toronto, Date posted to database: September 27, 2013 Last Revised: September 27, 2013 9 35 Shelby County and the End of History Joel Heller, Unaffiliated Authors – Independent, Date posted to database: October 8, 2013 Last Revised: October 8, 2013 10 31 Keynote Address of Prof. Richard L. Hasen Given to the Voting Wars Symposium, March 23, 2013 Richard L. Hasen, University of California, Irvine – School of Law, Da…

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Election Law in the New Issue of Harvard Law Review

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

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

…t economic, racial, and gender barriers to secure this right. In the wake of the recent Supreme Court ruling on Shelby County v. Holder that struck down criteria determining which state and local governments could make changes to voting laws or procedures, many have argued that vast groups voters across the United States are now disenfranchised. Join this expert panel as they explore the future of voting rights in the United States — are ne…

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

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

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

…from the federal government. U.S. Department of Justice lawyers and attorneys from Wiley Rein, who represented Shelby County, Ala., in the voting rights dispute, are expected to fight over two issues: whether the challengers are entitled to fees in the first place and whether $2 million is too much. The fee request “appears to present novel legal issues,” the attorneys in the case said in a Nov. 4 court filing. The government and civ…

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“The Right to Vote”

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

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“Section Two Minus Section Five”

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

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North Carolina and Racial Redistricting

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

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

…dely regarded as a means of voter suppression rather than fraud prevention.” I wrote a Washington Post oped criticizing Judge Posner’s opinion in Crawford, and urging the Supreme Court to take the case.  That was, as I admit in the Voting Wars, a terrible thing to wish for (though I doubt my oped had anything to do with the Supreme Court taking the case). UPDATE: Posner had previously criticized the Shelby County decision.  …

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“Shelby County and the End of History”

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

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“Voting Rights Struggles Face Legislative Hurdles”

…n has not only continued but accelerated following the Supreme Court’s recent ruling on the Voting Rights Act. According to the report, Election Legislation 2013: Legislative Threats and Opportunities, 32 states introduced laws that restrict voting. With the June 2013 Supreme Court decision in Shelby County v. Holder, which effectively removed a key protection of the Voting Rights Act, the next era in the struggle for voting rights begins now….

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

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

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Election Law Journal 12:3 — Responses to Shelby County

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

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

…mber of justice of the peace and constable districts a year after the U.S. Justice Department blocked a similar plan as discriminatory.” Yeah, the end of preclearance matters.  And for those like James Taranto who say the Court didn’t really kill Section 5, only the preclearance provision of section 4, I debunk that claim in my APSA paper (which I’m presenting tomorrow), Shelby County and the Illusion of Minimalism.  …

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

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

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

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

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Rep. Sensenbrenner Issues Comment Regretting DOJ Suit on Voter ID

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

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

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

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