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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“Language Accommodations and Section 203 of the Voting Rights Act: Reporting Requirements as a Potential Solution to the Compliance Gap”

…universal enforcement of federal election laws, this Note adapts a recent proposal requiring the advance disclosure of federal voting changes to the language assistance context. In response to the Supreme Court’s decision in Shelby County v. Holder, academics and members of Congress have proposed a requirement that all election jurisdictions report to the local media and the government certain changes to their election laws before those changes…

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“Do the Facts of Voting Rights Support Chief Justice Roberts’s Opinion in Shelby County?”

…ected individuals’ rights to vote. While acknowledging the success of the law in greatly increasing the number of African-American and Latino elected officials, Chief Justice John Roberts contended in his majority opinion in Shelby County v. Holder that the problems of 2013 were much less grave than the “pervasive…flagrant…widespread…rampant” voting discrimination of 1965 and that the coverage formula was outmoded because…

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House Republicans to Push Bill Declaring “End to Racism” in U.S.

…e the remaining portions of the Voting Right Act and other civil rights laws as ‘no longer necessary to insure American liberty.’ The resolution has begun to gain Senate support, including from Senator Richard C. Shelby (R-AL), who missed the commemoration of the 50th anniversary of the Selma civil rights march to participate in mundane events at the opposite end of Alabama. Senator Thad Cochran (R-MI) could not say whether or not he…

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Nick Stephanopoulos on the Alabama Redistricting Case

…not a motive that can compete with race for predominance. The case’s interpretation of Section 5—that it does not require freezing districts’ minority population shares—also seems interesting but not too meaningful in a post-Shelby County world. But while the case was no blockbuster, there may be more to it than meets the eye. Here are a few reasons why it may have some lasting significance. First, it establishes that minority plaintiffs can…

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Opinion Analysis: A Small Victory for Minority Voters, or a Case with “Profound” Constitutional Implications?

…ace was the predominant factor in redistricting, and Section 5 did not require the maintenance of the same percentage of minority voters in each majority-minority district. Further, since the Supreme Court’s 2013 decision in Shelby County v. Holder,  holding the preclearance formula unconstitutional, eliminated the preclearance requirement for Alabama, compliance with Section 5 could no longer be a compelling interest to justify a racial…

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“The New Normal in Election and Political Law”

…eye to generating new ideas for research and advocacy. Election and political law have undergone radical changes in the past five years. The Supreme Court’s recent decisions in Citizens United v. FEC, McCutcheon v. FEC, and Shelby County v. Holder have systematically reshaped our campaign finance and voting rights regimes. We can expect these changes in the law to have significant, long-term effects on electoral politics. Yet most analyses have…

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Future of Voting Rights Symposium

…hard Pildes Richard Pildes Remarks of Robert Bauer Robert Bauer Remarks of Benjamin L. Ginsberg Benjamin L. Ginsberg Remarks of Myrna Pérez Myrna Pérez Remarks of Dale Ho Dale Ho Remarks of Julie Fernandez Julie Fernandez Remarks of Spencer A. Overton Spencer A. Overton Remarks of Samuel Issacharoff Samuel Issacharoff Questions and Answers Articles Voting Rights Litigation After Shelby County: Mechanics and Standards in Section 2 Vote Denial…

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“Shelby Missed Selma Ceremony, Citing Scheduling Conflicts”

…attention was focused on the Edmund Pettus Bridge on the 50th anniversary of “Bloody Sunday,” the senior senator from Alabama was hours from Selma, participating in his annual tour of the state’s 67 counties. Sen. Richard C. Shelby’s office posted photos on Twitter from unrelated events with constituents in four counties, including an equipment company in Lamar County and a 3M facility in Marion County. According to his office, the Alabama…

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“North of Selma, black leaders ‘fighting the same battle’”

…olitical leaders, including President Obama, and foot soldiers of the movement are in Selma to observe the 50th anniversary of the “Bloody Sunday” march that helped to propel the passage of the Voting Rights Act. But this is Shelby County, a rural cluster of small towns, modest homes and farmland. It was here in 2013 that local officials won a major victory when the Supreme Court struck down a key provision of the federal law that resulted from…

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“Audio Links: Alabama Law Review Symposium on the Voting Rights Act”

…march, which will be commemorated this weekend across the country and in Selma itself–that helped bring about its passage; the current state of voting rights law, with panelists discussing, among other things, both the Shelby County decision and the pending Alabama Legislative Black Caucus case; and the uncertain future of voting rights. It was an extraordinary day. The topic itself was suggested by the students themselves, not the dean or…

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New Appeal in Texas Redistricting Case

…tinued, “For the constitutional doctrine of ‘one person, one vote’ to have any meaning, some metric of voters rather than non-voters must be the basis for creating legislative districts when conditions like those in Texas exist.”   Founded in 2005, the Project on Fair Representation has provided counsel in a number of cases heard by the U.S. Supreme Court including Shelby Co. Ala. v. Holder and Abigail Fisher v. Univ. of Texas.  …

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“Honor King’s Legacy By Protecting Voting Rights”

…. It ends with King speaking triumphantly on the steps of the Alabama capitol, after marching from Selma to Montgomery. Five months later, Congress passed the VRA, the most important civil-rights law of the twentieth century. If only that story had a happy ending today. Selma has been released at a time when voting rights are facing the most sustained attack since 1965. The Supreme Court gutted the centerpiece of the VRA in Shelby County v….

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“The Law of Democracy at a Crossroads: Reflecting on Fifty Years of Voting Rights and the Judicial Regulation of the Political Thicket”

…s ago. Since the 1960s, the Court has changed the landscape and the regulation of our system of politics, and its decisions continue to significantly impact this area. In 2013, the Court decided two major election law cases. Shelby County v. Holderinvalidated section 4(b) of the Voting Rights Act and raised important questions about the future of a super statute that had eliminated much of the racial discrimination in our political…

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“Racial Voting and Geography in the United States”

…th respect to the continued need for voting rights protections in certain areas of the country where racially polarized voting is at its highest levels, and recommend that Congress adopt a measure of racially polarized voting in an updated coverage formula for Section 4(b) of the Voting Rights Act, recently struck down by the U.S. Supreme Court in Shelby County v Holder….

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“The State as Witness: Windsor, Shelby County, and Judicial Distrust of the Legislative Record”

Bertrall Ross has posted this draft on SSRN (NYU Law Review).  Here is the abstract: More than ever, the constitutionality of laws turns on judicial review of an underlying factual record, assembled by lawmakers. Some scholars have suggested that by requiring extensive records, the Supreme Court is treating lawmakers like administrative agencies. The assumption underlying this metaphor is that if the state puts forth enough evidence in the…

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Top Recent Downloads in Election Law on SSRN

…Craig M. Burnett and Vladimir Kogan University of North Carolina (UNC) at Wilmington and Ohio State University (OSU) – Department of Political Science Date posted to database: 7 Nov 2014 Last Revised: 7 Nov 2014 9 37 The Meme of Voter Fraud Atiba R. Ellis West Virginia University – College of Law Date posted to database: 22 Oct 2014 Last Revised: 2 Dec 2014 10 31 Devising a Standard for Section 3: Post-Shelby County Voting Rights…

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Another OpEd Suggesting Voter ID Affected Election Outcomes in 2014

…he identification needed to vote under a new voter ID law. In North Carolina, 200,000 people voted early in 2010 and, thus, were potentially impacted by severe cuts to early voting that the state passed mere months after the Shelby County decision. The Senate race there was decided by 48,511 votes. In Alabama, 250,000 to 500,000 voters were impacted by a new voter ID law and the governor’s race was decided by 320,139 votes. I remain deeply…

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“Guest Blog: Janai Nelson, Race Reasoning in Alabama Redistricting: A View from the Supreme Court”

Here: If ultimately forced to draw a new plan in the current post-Shelby world, Alabama would no longer have Section 5 to rely on—for better or worse. Instead, it would have to take account of the Voting Rights Act’s other anti-discrimination weapon, Section 2, which prohibits any voting law that results in vote dilution or denial on account of race—and, of course, the constitution. Near the close of the argument, Justice Alito alluded to this…

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“Governing and Deciding Who Governs”

…217;s implicit contrasting of the Court with “those who govern” serves to suggest that the Court is somehow removed from the arena of partisan politics. Part II discusses this claim with reference toBush v. Gore, Shelby County, and election-law disputes surrounding the 2014 midterms. The conclusion will consider what these rhetorical distancing strategies get the Court, and what a critical evaluation of them gets us. I heard this…

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No, Shelby County Did Not “Abrogate” South Carolina v. Katzenbach

…oding of the Shelby County voting rights case as having abrogated the original case upholding voting rights preclearance, South Carolina v. Katzenbach.  From the piece’s conclusion: In labeling Katzenbach “abrogated by Shelby County,” Westlaw not only made an unwarranted value judgment, but also potentially swayed the course of the law. Advocates dissuaded from relying on Katzenbach could be robbed of a valuable tool for arguing in favor…

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