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

BLT: The lawyers who successfully challenged the Voting Rights Act before the U.S. Supreme Court earlier this year are seeking $2 million in legal fees 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 m…

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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”

Nick 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 vo…

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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

Wow. My transcription from HuffPostLive: In response to Mike Sacks’s questions about whether Judge Posner and the 7th circuit got it wrong in Crawford case, the one upholding Indiana’s tough voter id law against constitutional challenge: “Yes. Absolutely. And the problem is that there hadn’t been that much activity with voter identification. And … maybe we should have been more imaginative… we…. weren&#8…

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“Shelby County and the End of History”

Joel 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…

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“Voting Rights Struggles Face Legislative Hurdles”

Release: In a report released today, voting rights organization Project Vote analyzes all of the voting related bills introduced, passed, or rejected across the country since the beginning of 2013, and finds that the trend towards disenfranchising legislation 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 Oppo…

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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 Ger…

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

In Pasadena, TX: “the City of Pasadena in southeast Harris County voted 5-4 to place a proposition on the November 2013 ballot that, if approved by voters, would change the city’s current 8 single member district system of electing members of the city council to a 6-2 system featuring two at large members. State Sen. Sylvia Garcia, MALDEF, and the Houston Chronicle have all expressed concerns that the move would dilute the voting strength…

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

The subject of AALS Legislation & Law of the Political 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…

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

I hope to see many of you in Chicago:     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 Pr…

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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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A Few Quick Thoughts on DOJ’s Suit Against Texas on Voter ID and Moves on Redistricting

As I explained in this National Law Journal piece from a few weeks ago, AG Holder is trying whatever he can to make up for the loss of the preclearance provisions of Section 5. But thanks to the Supreme Court’s stingy interpretation of section 2 of the Voting Rights Act, a section 2 suit on voter id  will be tough to win. In this recent Slate piece on North Carolina’s tough voter law, I explain that the preclearance provision which t…

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Breaking: DOJ Sues Texas Over Voter ID using Section 2 of Voting Rights Act

Press release: Department of Justice Office of Public Affairs FOR IMMEDIATE RELEASE Thursday, August 22, 2013 Justice Department to File New Lawsuit Against State of Texas Over Voter I.D. Law The Department of Justice announced today that it will file a new lawsuit against the State of Texas, the Texas Secretary of State, and the Director of the Texas Department of Public Safety over the State’s strict voter photo identification law (SB 14…

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Pasquotank County, NC Appeal

In my recent Slate article, I wrote: Forty of North Carolina’s counties were covered by the preclearance requirement before Shelby County, and a draconian law like this would never have made it past the Justice Department. Nor would a whole bunch of local shenanigans deployed just last week in suppressing student and other voting. The Associated Press reported that “The Pasquotank County Board of Elections on Tuesday barred an Elizabeth City St…

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

By Rick Pildes & Dan Tokaji The primary goal in our earlier post was to bring greater policy and legal realism to discussions of Section 5 — both in terms of (1) historical perspective on what Section 5 actually did and (2) on what kind of voting policies are likely to be most effective going forward.  These conversations are essential for those, like us, concerned with preventing new barriers to access and with expanding access to mor…

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“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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