“Commentaries: The Congressional Response to Shelby County”

The Harvard Law Review Forum has posted Dismissing Deterrence The VRAA’s proposed preclearance regime would still be vulnerable to attack By Ellen D. Katz Read More Voting Rights Law and Policy in Transition Activists ought not settle for the valiant but modest VRAA By Guy-Uriel E. Charles & Luis E. Fuentes-Rohwer Read More…

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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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“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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